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Aziz Rana’s genealogy of American constitutional veneration overturns the conventional wisdom, not merely about the chronology, but also about the reasons for this worshipful attitude towards a document drafted in the late eighteenth century. At the same time, his forthcoming book, Rise of the Constitution, is politically explosive: for it appears at a moment when some Americans are wondering if the U.S. Constitution is part of the problem with America’s political order, rather than the source of a solution.
What, however, follows veneration? We want to speculate in our response about this, because Rana’s extraordinary book poses no question more burning than this one. Do we need a better constitution? Or do we need a less constitutionally-oriented politics?
The answer to this depends on whether one is defining constitutions and constitutionalism with the ancients or the moderns. According to Aristotle and others, every political order or regime will have commitments that are deeper and less easy to shift, and so every place and time is “constituted,” however implicitly.
The modern break, in contrast, was to tether constitutionalism to a notion of fundamental law, deeper than and supreme over ordinary law. And the American innovation was to consign that fundamental law to paper. The idea was that, whether unwritten or written, there was some deeper or higher law to which subsequent laws had to answer, even when large majorities of legislators had passed them.
Even without judicial review, the distinction between fundamental and ordinary law is of the utmost importance to modern constitutionalism. It essentially defines what it is. The distinction allows statutes to be deemed “lesser,” compared to the controlling law of the Constitution that creates political arrangements such as the legislature in the first place.
The distinction between fundamental and ordinary law was unknown before the modern age. Of course, an array of modern polities have built on that distinction in different ways. The idea of fundamental law could be treated merely as a kind of necessary premise that (democratic) sovereignty comes before any governmental scheme. At the other end of the continuum, it could have more detailed substance, allowing—as American arrangements do—censorship and invalidation of statutes by a constitutional judiciary when they are deemed in conflict with fundamental law.
That is why Rana’s demystification and genealogy of American assumptions that the Constitution is sacred, leads to two very different possible sequels.
Should the U.S. Constitution become less venerated, it might be easier to rewrite it—or even write a new one from scratch. Rana himself seems to embrace such possibilities. He reminds us of just how open to amendment—in effect, tweaking fundamental law—the U.S. Constitution once was, before it came under the custodianship of a constitutional elite, both judicial and professorial. Rana seems to think we can better honor our implicit commitments to democracy with a more genuinely democratic charter than America has ever had. And that would allow some form of “popular constitutionalism” that would not merely make our fundamental law more democratic, but also transform the very process by which it is adapted over time, with bigger roles for mobilized citizens and the federal and state legislatures to represent them.
In calling for a more democratic constitutional order, Rana’s work resonates with that of earlier popular constitutionalists, who observed ways in which people “interpreted” the Constitution at the Founding through direct action like mobbing and jury nullification as well as indirect measures—like when Congress, on behalf of the people, legislated in defiance of Supreme Court rulings.
Similarly, under the banners of “administrative” and “legislative constitutionalism,” contemporary legal scholars have documented and promoted the myriad ways in which the more democratically responsive governmental branches can and do shape constitutional meaning within our overall legal system.
The examples such scholars highlight are meant both to assure and embolden, illustrating how the contributions of social workers and local officials administering welfare programs or the National Labor Relations Board targeting racial discrimination within unions or Congress enacting anti-discrimination protections for the elderly and the disabled make our fundamental law more democratic. Such examples are meant to encourage political actors to wrest more control of the Constitution from the judiciary. Though less radical in their aspirations than Rana, these popular, administrative, or legislative constitutionalists thus hope to return our Constitution to the people to some modest degree.
Though laudable in its goal, this scholarship in support of a more democratic “constitutionalism” can also be frustrating. It tends to obscure important distinctions, and in so doing, makes fundamental law seem more natural and more necessary than it is.
In particular, such work trades on the ambiguity between the ancient and modern sense of constitutionalism, suggesting at times that citizens and elected officials are developing the meaning of our written constitution and, at other times, that what is at stake is our nation’s most fundamental political values. Similarly, when talking about “constitutional meaning,” these constitutionalists leave it ambiguous whether the acts they showcase are about deciding what our written constitution shall mean or discovering its most faithful interpretation.
Such equivocation is understandable. In a culture of constitutional veneration, to openly call for people to make the legal order they wish to have might feel too jarring. Under those conditions, it might make more sense to invite people to take matters into their own hands by making claims on fundamental law, whether directly or indirectly, with the false assurance that really what they are doing is remaining faithful to some near-sacred text.
Now, with our political order far less settled and questions of basic governmental structure returning to the public sphere, it seems at least plausible that such a defensive posture is no longer warranted. In the midst of a new racial uprising and calls for a “political revolution” only very recently in the air, why pretend, for instance, that our political disputes turn on the “best” reading of an eighteenth or nineteenth century text instead of the sort of “freedom” or “equality” we as a people want our society to embody today, here and now?
That is why we think a very different next step after veneration is possible—not reclaiming constitutionalism for a new age but relinquishing the myth of fundamental law.
The whole distinction between fundamental and ordinary law partakes in a kind of metaphysical nostalgia. When we self-govern in the present, we decide what our most basic commitments are on an ongoing basis— do we let judges constantly reinterpret a written text in new ways (including when they claim to restore its original meaning) or do we organize more legislative and mobilizational versions of that reinterpretation? The removal of constitutional veneration could enable us as a people to understand that we are on our own to make our laws.
We already are, of course, but the myth that the constitution—written or unwritten, antidemocratic or democratized—is “there” to constrain, guide, or inspire us is mainly a distraction from this fact. We could better embrace what we are already doing by embracing ordinary law as all there really is.
After veneration, in other words, could come recognition that “constitutional law” is mostly a distraction from ongoing self-governance. At best, it is a detour for justifying what we want to do in terms inherited from the past. At worst, along with alienating ourselves from what we are actually doing, it distorts it. If we want abortion or union rights, or gender or racial fairness, or larger or smaller government, we have to decide as much. Constitutional discourse disguises or distorts the choice. It might be worth having a new Constitution focused on fair elections of free and equal citizens, as a machine for generating majorities. Even then, nothing about such norms (which already exist in our constitutional law) have guaranteed free and fair elections, let alone progressive results from them. What does is political work.
Why not, then, imagine the end of constitutional veneration as the portal to a post-constitutional political culture?
Samuel Moyn is Henry R. Luce Professor of Jurisprudence at Yale Law School and Professor of History at Yale University. His most recent books are Christian Human Rights (2015, based on Mellon Distinguished Lectures at the University of Pennsylvania in fall 2014) and Not Enough: Human Rights in an Unequal World (2018).
Ryan Doerfler is a professor of law at the University of Chicago Law School. His research focuses on the role of the judiciary within a democratic system and his writing has appeared in Jacobin, the Atlantic, New Republic, and the Washington Post.