The Constitution and Its Critics

Partisan gridlock. Gerrymandered representation. Supreme Court nomination hysteria. Presidents elected without popular support. Even casual observers—from the political Left to the Right—suspect American governmental dysfunction is afoot. 

Has the Constitution failed us? Or have we failed the Constitution? 

Aziz Rana, professor at Boston College Law School, argues in favor of the former position. In his new book, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, he sketches a new history of the United States Constitution: a history of the Constitution’s critics, and how, despite their efforts, Constitution-worship has become a feature of American life. His book offers a detailed look at a century of American intellectuals, activists, and politicians who distrusted (and occasionally rejected) the Constitution. Alongside these critics, Rana contends that the Constitution is to blame for America’s political difficulties. And he is troubled that despite the Constitution’s obvious flaws, our founding document has become central to American identity.

While The Constitutional Bind presents a helpful and comprehensive history of the Constitution’s critics throughout American history, it unfortunately leaves unanswered many of the most important questions about the Constitution’s so-called failures. 

The Constitution’s Anti-Democratic “Failures”

The Constitutional Bind assumes that any constitutional check on the popular will—any limitation to democracy—constitutes a failure. But the book contains no real argument for why this is so.

In the book’s introduction, Rana identifies several alleged flaws in the Constitution’s structure. These flaws ultimately boil down to a central point: the Constitution is not sufficiently democratic. Its anti-democratic checks, balances, and limitations, Rana argues, reflect the prejudices of the white capitalist class that drafted, ratified, and benefited from it. The Constitution therefore “fails” its people by retaining these anti-majoritarian hurdles.

The three specific flaws Rana identifies are not terribly surprising. First, he points out the Constitution’s geographic bias, citing the Electoral College, the Senate, judicial appointments, and gerrymandering as ways the Constitution favors a (largely white) rural minority over a “multiracial and largely urban majority coalition.” The Constitution fails, he claims, because it dilutes the voice of those in more populated states, which (often) correspond to ethnically diverse urban voters.

Second, Rana cites federalism as a fundamental flaw. As he explains, “[t]he dependence on state-based decision-making and representation dramatically overrepresents small, rural, and disproportionately white communities when it comes to national politics.” Especially when coupled with the Constitution’s geographic bias, this rural white minority enjoys a “basic institutional advantage across all the branches of government.” In other words, by vesting authority in the states, the Constitution gives an individual’s vote even less importance on a national scale.

Rana’s third critique is that the expansive modern presidency—while largely unchecked on matters of foreign policy—lacks the power to implement domestic public policy sua sponte. Any attempt to do so (e.g., President Biden’s student-loan forgiveness program) would be struck down by the Supreme Court—a court whose composition depends on two anti-democratic institutions: the Electoral College and the Senate. Despite the executive branch’s current expansiveness, it is insufficient to enact the will of the people, Rana argues.

According to Rana, these three anti-majoritarian devices are fatal flaws in the American constitutional system. Unfortunately, The Constitutional Bind fails to make a substantive argument for this position. While providing an engaging history of the Constitution’s critics, the book does not explain why the Constitution’s famous checks on the branches of government and the vox populi are failures.

A Critique of Process or Results?

But perhaps the chief problem with Rana’s book is his unsubstantiated assumption that more democracy is better. His failure to articulate why the anti-democratic elements in the Constitution are failures makes one wonder whether Rana is primarily dissatisfied with the Constitution itself, or simply the political results it generates. For instance, Rana decries how conservative factions thwart supposedly popular progressive policies. He asks: if a multiracial urban majority wants to implement popular progressive policies, why should a minority of largely white rural voters be able to prevent them from doing so?

But it’s worth asking: if conservatives constituted an urban majority, would Rana complain if a rural multiethnic progressive coalition wielded institutional power and prevented the implementation of conservative policies? If not, then the target of Rana’s ire should be those policies, not the constitutional structure. And indeed, Rana’s critiques of the Constitution appear wedded to policy goals. In the book’s introduction, Rana worries that the Constitution’s flaws could lead to “the Right . . . consolidating its base of support and even, on occasion, gaining numerical voting majorities.” In other words, when the Left cannot implement supposedly popular policies, more democracy is the solution; when the Right enjoys a voting majority, democracy appears to be a problem.

The traditional response to criticisms like Rana’s—the one outlined in Federalist No. 10—is that there must be limitations on the democratic impulse, for the good both of the nation and of those opposed to the popular will. But Rana spends no time explaining why Madison (or Plato, for that matter) misdiagnosed democracy’s dangers. Perhaps Rana has made such arguments elsewhere, but when his book’s subtitle asserts the Constitution’s failure, one would expect engagement with the arguments behind the Constitution’s (sometimes anti-majoritarian) checks and balances.

A History of Constitutional Reverence

Though Rana’s case against the Constitution largely falls flat, his history of the Constitution’s critics is worth reading. The history begins in 1887, the Constitution’s centennial. A century into the constitutional regime, Rana argues, the governing document’s merits were still up for debate. But throughout the twentieth century, the Constitution increasingly became a central aspect of American identity. By the end of the Cold War—and up through our present moment—most Americans unthinkingly revere the Constitution and consider such reverence central to American citizenship.

According to Rana, this constitutional reverence has not always been a core part of American identity. In his effort to establish this point, Rana organizes his book into four major sections, each explaining how that era challenged the current American order, and how the ruling classes responded by pushing respect for the Constitution, thereby solidifying the existing political regime (and their place at its pinnacle).

The book’s first part covers 1887 through 1917, in which the country adjusted to the closing of the frontier, the end of Reconstruction, and Gilded Age urbanization. The Constitution—drafted a century earlier in an agrarian, slaveholding environment run by propertied Anglo-American men—was tested in the early twentieth century by immigration, organized labor, socialism, and women’s suffrage. To justify the existing order, as well as American imperialism abroad, the ruling powers extolled the virtues of the constitutional order against its critics.

Rana then outlines this pattern in subsequent eras. The constitutional order and its governing assumptions are challenged by internal and external forces, resulting in America’s ruling classes emphasizing the importance of constitutional fidelity. 

From 1917 through 1945, for example, the Constitution distinguished the American regime from the European empires responsible for the First World War, as well as our fascist and imperial enemies in the Second. During the same period, progressives and New Dealers successfully marketed their positive-rights agenda as compatible with the constitutional order.

From 1945 through 1965, the Constitution’s compatibility with free markets (as opposed to the controlled economies of our communist adversaries) was sold as another of its virtues. At the same time, the expansion of civil rights highlighted the importance of the Bill of Rights and Fourteenth Amendment—amendments that are now nearly synonymous with popular invocations of “constitutional rights.”  

And from 1965 through 1987, Rana argues, judicial originalism waxed as political radicalism waned. The pattern described above (where the Constitution’s internal critics and external threats are met with a renewed constitutional devotion imposed by the ruling classes) was forgotten by most Americans. The result is an America enamored with its Constitution, despite its many vices. 

Rana’s narrative, in which challenges to the constitutional order are constantly thwarted by the ruling classes, shows that the framers successfully crafted a political order that could hold up through adversity. It also urges reflection on whether its checks and balances truly serve the ends of justice and protect the rights of the vulnerable.

But one of the most pressing questions Rana poses is whether reverence for the Constitution ought to be central to American identity. After all, Rana frames many of the Constitution’s critics as good, well-meaning Americans. But if constitutional reverence is not central to American identity, what does it mean to be a good American?

What Is an American without the Constitution?

Rana contends that fealty to the Constitution is not (or at least, should not be) essential to American identity. And there is clearly some merit to his claim. The Constitution was not ratified until over a decade after America’s founding. And clearly the Constitution is not perfect. So what are the central pillars of American identity?

Rana does not provide an answer to this question. This is another one of The Constitutional Bind’s frustrating omissions. If Rana believes that “creedal constitutionalism” is not central to America, then what is? Perhaps Rana would instead prefer to emphasize the Declaration of Independence’s second sentence as a belief central to American identity. In the Declaration, Rana can find a democratic hook—“the consent of the governed”—as well as a right to revolt against oppressive regimes. But at the same time, the Declaration asserts that governments are instituted to secure God-given, inalienable, natural rights. In other words, the Declaration of Independence affirms the same enlightenment-era, universalist expressions of negative rights that Rana decries as the instruments conservatives and capitalists use to suppress minority interests.

By failing to defend his critiques of the Constitution or provide an alternative vision of American identity, Rana’s The Constitutional Bind does not fully deliver what it implicitly promises. However, for a compelling history of the Constitution’s critics from 1887 through 1987, and how (despite their efforts) the Constitution has endured in the American political imagination, Rana’s book is worth reading. Rana’s history prompts us to reflect on how we ought to conceive of American identity and defend the Constitution’s anti-majoritarian checks and balances in the twenty-first century.

Image by seanlockephotography and licensed via Adobe Stock.