There is an oddity to the place of constitutional law in the modern American legal academy. Law faculties invariably have multiple scholars devoted to its study, it is considered a core curricular course, and yet most law graduates will never directly practice it in any form. There have been debates about its pedagogical merits revolving around assumptions that the Constitution is not just the foundational document structuring our legal system but has also always served as its deepest reservoir for exploring our most critical collective challenges. As such, constitutional scholarship sits atop an implicit hierarchy of legal inquiry shaping the litigation that putatively confronts, and resolves, the most pressing issues of our day. In turn, the Supreme Court is worthy of center stage in the social production of legal intellectual prestige.
In his mid-career opus, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, Aziz Rana attempts to deconstruct this and other such elevations of modern constitutionalism in American society. Most fundamentally, he seeks to denaturalize this state of “constitutional veneration” in which the legal academy is but one facet of the broader American embrace of “creedal constitutionalism.” The near deification of constitutional law, the Supreme Court, and the Constitution as core elements of American identity, Rana argues, is a relative novelty in American history. Every element of our current reverential preoccupation with the Constitution, whether in the legal academy or in our larger social politics, simply did not exist for most of the nation’s collective history.
For Rana, this reverence is in fact the product of a range of contingent mid-20th developments deeply intertwined with the rise of America as a global empire. The sacralization of the Constitution was built on a rewriting of American history which read these contingencies back into the American past and sidelined its settler colonial, ethno-nationalist, and imperial dimensions. In doing so, the naturalization of this “creedal constitutionalism” as central to modern American identity submerged and erased both a far more complex and contingent place for the Constitution in American political discourse as well as many competing constitutional visions once fervently fought over in the last two centuries.
The cost of this erasure is acute—manifest in an inability to confront the deeply anti-democratic elements of the Constitution whose operation, however ameliorated at particular historical junctures, has contributed to many of the social and political pathologies roiling American society today.
The ambition of Rana’s project is simultaneously diagnostic, expository, and reconstructive as Bind reaches nearly seven hundred pages before giving way to its footnotes. It builds directly on Rana’s first monograph, The Two Faces of American Freedom, which confronted related issues from the 18th through the 19th century. In turn, Bind is divided into four parts and sixteen chapters which bring us from the 1890s to the present. Bind’s more explicitly transnational orientation has each part framed by the development of American empire: the late 19th-century rise of American global power, the dynamics of World Wars I and II, and what might be called the early and late stages of the Cold War.
As a grand synthetic work of intellectual history, what Bind achieves in each of these eras is to demonstrate both the empirical marginality of our contemporary “creedal constitutionalism” and its progressive construction through a combination of social campaigns, state repression and political contests which reconfigured American identity as interwoven with global primacy. All while radical constitutional visions were coopted as the very strategic terrain on which those seeking to democratize American society was reshaped.
To start his longue durée, Rana identifies the relative irony that his “creedal constitutionalism”–identified as combining a commitment to racial equality with textual devotion to the Constitution–was an oddity in a 19th century American society. It was first practiced by radical abolitionists embracing a redemptive understanding of the document’s core commitments. The cultural universalism pursued by such radicals stood out in a country still openly possessed by a masculine ethno-nationalist concept of settler citizenship. It was also an era when the Supreme Court’s status was barely enough to attract investment for its material infrastructure, immigrant naturalization made little reference to the Constitution, and a wide range of social movements coalesced around deep critiques of the Constitution as irredeemably flawed. Even the Constitution’s first centennial was anemic at best, and constitutional law was absent from any formal legal curriculums.
Bind’s sequel-like relationship to Two Faces manifests as Rana chronicles how this 19th century American identity–the “settler compact”–collapsed after the Civil War under the concurrent pressures of industrialization, urbanization, and mass immigration. What came to be normalized as “American” cultural traits were in fact but a minor subset of the diverse reactions to this collapse. If anything, American society was still localized enough that suspicion of the national, and with it the Constitution, undergirded sentiments that the “Constitution was an aristocratic victory of propertied elites against the mass of ordinary settlers.” (P. 93.)
The shift away from this culture of Constitutional suspicion required fusing “creedalism, constitutional devotion, and US [global] primacy into a cohesive framework.” (24) Rana’s engagement with the US occupation of the Philippines outlines how the original ethno-nationalist exclusion of Filipinos from democratic inclusion was reformulated into a formally de-racialized universalism soon to be impactful at home. The inter-relationship of American empire with domestic constitutional discourse would later cast Mexico’s 1917 constitution as an antagonistic comparator to stigmatize socialist admirers, and Nazi Germany and the Soviet Union foregrounded as existential threats to creedal constitutionalism. Herein, the Constitution was reborn as the original post-colonial statement of exceptional American self-determination, and a gift that could then be transmitted to a world.
Rana shows how this new vision was initially far from dominant, but it was these transnational elements that eventually provided the fulcrum on which its ascendance turned. For they created a sense of perpetual emergency where promotion of the Constitution’s civil liberties was necessary to serve as a bulwark against overseas fascism, even if, paradoxically, those very liberties had to be suppressed at home in service of this global mission. Nowhere was this clearer than in the concurrence of novel celebrations of the Bill of the Rights and endorsements of Japanese internment.
This “divided liberal mind” could thus have a flexible sense of cultural pluralism as long as newly included groups accepted militarism abroad, national security at home, and abandoned radical critiques of the Constitution. Varied coalitions of economic interests also opportunistically injected market capitalism into this mix, with “pro-Constitution advocacy closely bound itself to a remarkably authoritarian statecraft, one that tarred anti-war, anti-Constitution, and anti-capitalist speech as interrelated threats to Americanism.” (P. 251.)
The ultimate success of this new constellation of “American” virtues was built on the growth of the post-World War II middle class and the accomplishments of an array of social movements—most evident in women’s enfranchisement and the Civil Rights Act—through accepting the terms of this accommodation. Rana does not discount these successes but shows that this accommodation accelerated the disciplinary power of the national security state and its private allies to rework what was considered “American” forms of social resistance. Thus, the energies of these movements were redirected to entrench constitutional veneration when their popular force could not be overtly resisted—presenting them as natural outgrowths of the redemptive function of even the Constitution’s own counter-majoritarian elements.
Bind traces this dynamic of accommodation several times over as Rana recovers the undermining of “radical movements on behalf of workers, women, Black Americans, and Indigenous communities.” (16) In each instance, the prospect of immediate concessions is held out to allow the tamed inclusion of any radical charge into the redemptive arc of American constitutional history. This further then allowed favored leaders to portray marginalized groups as truer to the Constitution’s project than the dominant social interests they oppose.
The seeds of our contemporary crises then lie in these now deified political constraints–the books titular “binds”–which removed “from public dispute critical questions that had long been central in American public life—questions about the basic organization and principles of the legal-political system, the economy, and the emerging national security state.” (P. 390.)
In its actual unfolding, the book is anything but a march of abstractions. Rana’s general objective of denaturalizing contemporary constitutional veneration is matched by a sustained project of historical recovery. Each chapter relates a rich tapestry of once vibrant, if now suppressed, voices who struggled to democratize American society only to later be reductively characterized as unprincipled and dangerous populists when remembered at all.
There are several figures who recur in his chapters, each either demonstrative of larger transitions or as avatars of the solidaristic social vision close to Rana’s own sensibilities. Woodrow Wilson and W.E.B DuBois stand out in the former category for their shifting views of both the Constitution and American imperialism. Hubert Harrison and Crystal Eastman stand out in the latter category—their legacies obscured exactly because they refused to surrender their expansive visions of democratic social change, rejected constitutional veneration, and remained steadfast opponents of imperial expansion.
Bind does not conclude with clear prescriptions. Rana’s overarching motivation is to highlight the contingency of our modern sensibilities exactly because he sees the “Cold War consensus” of the mid-20th century unraveling in much the same way as the “settler compact” unraveled at the end of the 19th century. His history aims to refocus us on what previous reformers were asked to set aside: basic structural distributions of democratic power that are not dependent on compensatory developments that only episodically paper over the defects in Constitution. Genuine democratization will require being honest about our history, and especially the cost that American global primacy has extracted at home and abroad. It also requires rejecting resurgent elements of our settler colonial past.
If it seemed odd that this review began with a discussion of the American legal academy given the scope of Bind’s narrative, its salience becomes clear in the more personal notes of Rana’s conclusion. He is, by vocation, a constitutional law professor. While many have recently expressed despair that the current Supreme Court has sabotaged American constitutionalism, Rana sees the presumptions of this “loss” as presuming the very contingent imagination that he and many others had already found naturalized when they first entered law school.
Thus, Bind’s conclusion makes a plea to the legal elites most empowered by constitutional veneration that a necessary step is to let go of its false promise. The American legal academy, the American Bar Association, and the Supreme Court were often at the vanguard of the suppression and accommodation he highlights, as they helped stigmatize more radical visions even within their own ranks. Such complicity was rewarded with the Warren Court notion of transformative constitutionalism which placed lawyers at the forefront of social change.
Rana’s account of the New Deal is integral here, noting how even once strident constitutional critics such as Charles Beard succumbed to the idea that constitutional veneration would constructively provide lawyers roles as “definitive guardians of constitutional meaning and possibility.” And constitutional lawyers and the Supreme Court, bound together through myriad social and professional practices, would be the most empowered of all as textual interpreters if they rejected any dreams of institutional redesign. Whatever accomplishments may mark some of the recent past, it is not through Supreme Court commissions or other technocratic legal exercises that Rana’s constitutional reimagination will happen. Much like American primacy abroad, it will only be with a collective acceptance that this empowerment has come at too great a cost.
I did not use the term opus causally. The Constitutional Bind requires much of a reader set to engage it in one sitting. But its very sense of overflowing detail and overlapping narratives relays the richness of American constitutional visions that have been lost. Even if one wants to look to history to recovery something more authentically American, Rana is committed to showing us that this is no inspirational straitjacket. If there is anything that has been consistent in visions of American democracy, it is their diversity and conflict. Once recognized this renders possible futures free of our self-imposed, and self-sabotaging constraints.
