Constitutional Iconoclasm

Andrew J. Lanham* April, 2025

The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them. By Aziz Rana. Chicago: University of Chicago Press. 2024. Pp. xii, 776. $45.

Introduction

The U.S. Constitution was signed in Philadelphia on September 17, 1787.¹ By the time it reached its one hundredth birthday, it was showing its age. There was a series of moderately sized celebrations for the Constitution’s centennial in 1887 (pp. 41–43). But the text also drew withering criticism from across the political spectrum. In the late nineteenth century, far from praising the genius of the Founding Fathers, as middle-school civics classes and Supreme Court justices are wont to do today,² a wide range of activists, academics, pundits, and politicians denounced the Constitution and tried to reimagine the entire system of American self-government.³ For these Gilded Age critics, the Constitution looked less like a charter of fundamental rights and liberties and more like a fundamental barrier to liberty, equality, and democracy.⁴

Constitutional criticism emerged from every region and political persuasion. In the North, for example, the prominent editor E.L. Godkin, who had been closely aligned with abolitionists and the Republican Party during the Civil War and Reconstruction, derided the 1887 centennial celebrations for the Constitution.⁵ In his liberal magazine, The Nation, Godkin bluntly wrote that the Constitution, which had failed to stop sectional tensions between the North and the South, was a “failure.” He then predicted that “those who celebrate the next centennial of the constitution will be disposed to put the date in 1865,” to mark the transformative passage of the Thirteenth Amendment and the abolition of chattel slavery, “rather than in 1787.”⁶ It was hardly a paean to the wisdom of the Founding Fathers. And even Godkin’s attempt to refocus constitutional ardor on the Second Founding during Reconstruction would ring hollow by the end of the nineteenth century, as the legal, political, and socioeconomic systems of Jim Crow racial subordination set in.⁷ In the early 1900s, the Black writer and civil rights activist W.E.B. Du Bois lamented the “Reconstruction tragedies,”⁸ from voter disfranchisement to segregation on the railroads,⁹ that had squandered the egalitarian promise of the Reconstruction Constitution.¹⁰

There was constitutional discontent across the political aisle, too. In 1876, the Southern Democrat and “avowed white supremacist[]” Woodrow Wilson¹¹—decades before he took the presidential oath of office to “preserve, protect and defend the Constitution”¹²—wrote in his diary that “this country will never celebrate another centennial as a republic.”¹³ Even after Reconstruction ended in the late 1870s,¹⁴ Wilson wrote in his seminal 1885 book, Congressional Government, that the public had experienced a major “change of attitude towards the Constitution” due to “the rude shock” of the Civil War.¹⁵ Whereas previous generations had venerated the text, Wilson reported, there was now a “free, outspoken, unrestrained constitutional criticism.”¹⁶ People questioned, Wilson said, whether the document was still “adapted to serve the purposes for which it was intended.”¹⁷ In fact, between 1899 and 1911, the view that the Constitution created a dysfunctional system of government became so widespread that fifteen different states called for a new constitutional convention “for a general rewriting of the existing text” (p. 96).

But a funny thing happened over the next century. By the time the Constitution turned two hundred, in 1987, a near-religious veneration for the text had taken hold (pp. ix–x). Indeed, in 1988, the constitutional theorist Sanford Levinson’s book Constitutional Faith analyzed how the Constitution served as a “sacred object” in American public life, with the Supreme Court as the “holy institution” that interprets its “sacred text.”¹⁸ The “free, outspoken, unrestrained constitutional criticism” Woodrow Wilson had observed in the 1880s was long gone.¹⁹ It had been replaced by a passionate attachment to the Constitution. Why?

Aziz Rana’s monumental book, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, aims to answer that question.²⁰ Weaving together legal, political, cultural, and intellectual history, Rana traces how the Constitution came to be the central pillar of political discourse and American identity over the course of the twentieth century (pp. 2–3). His primary claim is that our modern constitutional faith emerged together with—and substantially because of—the United States’ projection of overseas military power, especially after World War II, as the United States became the global hegemon (p. 3). Empire is thus at the heart of our constitutional story (p. 24).

Rana also argues, perhaps more provocatively, that this passionate attachment to the Constitution is profoundly damaging to the goals of equality and democracy (pp. 2–8). Even as reformers today advocate for changes to expand democratic self-determination, like ending the Senate filibuster or limiting the Supreme Court’s jurisdiction, Rana contends that an abiding faith in the Constitution narrows the horizons for democratic reforms because it prevents reformers from imagining forms of self-government beyond our current system (pp. 9–10). Unless we break free from that titular “constitutional bind,” Rana argues, efforts to democratize our system will be stymied by that system’s own built-in antidemocratic features (pp. 4, 36–38).

To help imagine a way out of that constitutional myopia, Rana’s book also revives and recounts the stories of activists who, more radically, “sought to fundamentally transform the constitutional order on grounds of genuine democracy” (p. 32). Rana gathers a “new cast of characters” for constitutional history, drawn primarily from the labor, civil rights, and feminist movements (pp. 32–33), and he builds on their ideas, seeking to expand “the established language for debate” about constitutionalism (p. 628). Martin Luther King, Jr., for example, argued during the Poor People’s Campaign in the late 1960s that “the Constitution assured the right to vote, but there is no such assurance of the right to adequate housing, or the right to an adequate income.”²¹ True liberation, King wrote, would therefore require “approaching areas where the voice of the Constitution is not clear.”²² Although “the Constitution’s political Bill of Rights” did secure formal equality, King believed, it was now necessary to add “new forms of rights,” securing substantive socioeconomic equality, in order to “push[]” the “concept of democracy” to “deeper levels of meaning.”²³ Rana likewise advocates for a deeper, more transformative concept of constitutional democracy (pp. 658–59).

We should listen. Rana’s book was eagerly anticipated, and it generated a wave of responses.²⁴ It arrived at the right time, as critics and politicians on both the Left²⁵ and the Right²⁶ increasingly question the value of various aspects of the Constitution. The antidemocratic version of such attacks on the Constitution deeply endangers basic freedom and equality, but the expanding discourse of constitutional skepticism over the last few years also opens up space for the pro-democracy critique of constitutionalism that Rana levels. In this moment of constitutional ferment, his book should have a significant impact on constitutional history and theory, on law school pedagogy, and on activists and politicians hoping to build a more free and equal democracy.

To make that case, Part I of this Review recounts Rana’s historical narrative. Part II then evaluates his argument. In particular, I suggest that there is some tension between Rana’s own stated political pragmatism—his “instrumentalist” focus on workable, winnable solutions in the present to counter the Constitution’s antidemocratic features (p. 678)—and the more rigid, Garrisonian rejection of the Constitution that he appears to voice occasionally throughout the book.²⁷ The pragmatistic approach, I argue, ought to win out. Finally, Part III zooms out to examine more broadly how Rana’s book might reshape concrete practices of legal and political organizing and law school pedagogy in the years to come.

I. The Long Arc of Constitutional Faith

To sustain a claim that everything changed, it is necessary to show how things used to be. So Rana begins there, briefly analyzing constitutional discourse before the Civil War (pp 45–57). He then spends most of the book charting constitutional discourse from the late nineteenth to the late twentieth centuries,²⁸ essentially identifying three phases: Before the Civil War, the dominant form of constitutional veneration praised the text as a sectional compromise between the North and the South over the question of slavery, which enabled westward expansion (pp. 20–21). Then, from the Gilded Age to the New Deal, constitutional discontent increasingly roiled the nation, as Americans criticized the antidemocratic features of the text (pp. 43–44). Finally, beginning in World War I but really taking off during the Cold War (pp. 24–25), a new form of constitutional veneration emerged that saw the text as the embodiment of what the sociologist Gunnar Myrdal memorably dubbed the “American Creed”²⁹—the idea that the United States was founded on a central creed of equality and has been progressing, redemptively, toward the realization of that egalitarian principle ever since.³⁰

Rana argues that Americans today tend to embrace a Myrdallian creedal narrative about the inherent egalitarian goodness of the Constitution, and hence of the United States itself, with the creedal Constitution offering “a shared banner and language of American exceptionalism” (p. 13). But Rana contends that this creedalism in fact masks the deep political and socioeconomic inequalities built into our system and simultaneously obscures how earlier generations criticized such inequalities (pp. 10–11). Rana’s narrative thus aims to explain the rise of the creedal Constitution and to recover the rich language of constitutional critique that creedalism eclipsed (p. 3). This Part recounts that narrative. Section A traces how antebellum constitutional veneration soured into constitutional discontent during the Gilded Age and the Great Depression. Section B then tracks how, according to Rana, the emergence of overseas U.S. military hegemony in the twentieth century fueled new reverence for the Constitution on the home front, tying the creedal Constitution to global power in the era that Henry Luce famously proclaimed “the American Century.”³¹

A. Antebellum Adulation, Gilded Age Discontent

Americans did hold the Constitution in high regard in its early decades (p. 20). Building on the work of historian Jonathan Gienapp, Rana notes that members of the Founding generation “jump-start[ed] a politics of veneration” in the 1790s when they added the Bill of Rights to the end of the Constitution, rather than inserting the changes throughout the text.³² In Gienapp’s words, this marked a “milestone[]” in “constitutional history” because it framed the text as “sacred” and fixed, rather than as “an organic, evolving whole.”³³

That reverence for a sacred text endured. In 1803, for example, Chief Justice John Marshall declared in Marbury v. Madison that “in America . . . written constitutions have been viewed with so much reverence,”³⁴ while Thomas Jefferson complained in 1816 that “[s]ome men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched . . . ascrib[ing] to the men of the preceding age a wisdom more than human.”³⁵ Decades later, in his 1838 Lyceum address, Abraham Lincoln did essentially that, calling the Constitution a “legacy bequeathed to us” and hoping that it would “become the political religion of the nation.”³⁶ At least some form of constitutional veneration was certainly in the antebellum air.³⁷ But Rana argues that the nature of that sanctity was crucially distinct from modern constitutional reverence. “[E]ven if bathed in quasi-religious language,” he contends, the Constitution held a different place in antebellum culture than it does today (p. 20).

The dominant antebellum view, according to Rana, had two key components. First, writers and politicians framed the Constitution as a sectional compact between the North and the South on the question of slavery, which enabled national unity (p. 21). Second, commentators emphasized that the Constitution provided a political framework for westward expansion, which empowered white settlers to conquer the continent and build new states (p. 21). As a result, Rana writes, the Constitution “was routinely cast in fundamentally anti-creedal terms” (p. 56). Americans praised the Constitution not as the apotheosis of a Myrdallian creed of equality, but as “a text of compromise and nation-building for a racially exclusionary project” (p. 57). Lincoln, for instance, called the Constitution the “picture of silver” that framed the more important “apple of gold” that was the Declaration of Independence³⁸ and its affirmation that “all men are created equal.”³⁹ But Rana reminds us that Lincoln also called the Declaration a “white man’s charter of freedom.”⁴⁰

Similar perspectives could be found at various points on the political compass. The Democrat Stephen Douglas, for example, argued in his 1858 debates with Lincoln that “this government was made on the white basis, by white men, and for the benefit of white men.”⁴¹ The Black radical abolitionist John Jacobs agreed with that assessment of the Constitution—he just saw it as a reason to reject the text. In Jacobs’s recently rediscovered 1855 memoir, he condemned popular “reverence” for the Constitution.⁴² “[T]hat devil in sheepskin called the Constitution of the United States,” Jacobs wrote, was “the great chain that binds the north and south together, a union to rob and plunder the sons of Africa, a union cemented with human blood, and blackened with the guilt of 68 years.”⁴³ If Jacobs’s memoir had been republished before Rana’s book came out,⁴⁴ it would have provided telling additional evidence for Rana’s claim that many antebellum Americans saw the Constitution as a “compromise” to make “a racially exclusionary project” of “nation-building” possible (pp. 56–57).

Rana has examined the racial politics of nation-building and westward expansion before. His previous book, The Two Faces of American Freedom,⁴⁵ interrogated what he called the legal “framework” of “settler empire,” which he argued was designed to grant freedom and self-government to “racially defined insiders” while “extract[ing] much-needed land and labor from Native and non-settler groups, . . . particularly enslaved African workers and their descendants.”⁴⁶ Building on that account, Rana now writes in The Constitutional Bind that white settlers in the antebellum period maintained “social cohesion” through this shared project of racialized westward expansion (p. 45). To them, the Constitution was valuable because it “enabl[ed] this ongoing conquest” (p. 21).

Spotlighting that settler-colonial project brings different provisions of the Constitution into sharper focus. Take Article IV, Section 3, a now-long-unused passage that provides rules for admitting new states.⁴⁷ Rana argues that “the practical activity of settlement” did “elevate[] the salience of the writing and construction of constitutions” in the antebellum period (p. 54). “[B]ut it did so most prominently,” he says, for “the act by white settlers of writing . . . state constitution[s]” (p. 54). If writing a constitution has often been the way in which a people constitutes itself, shaping its collective political identity,⁴⁸ then white settlers constituted themselves as political communities by drafting state constitutions under the federal framework established in Article IV (p. 54).

The Civil War, of course, remade the Constitution. Antislavery thinkers had long been building an alternative view of the Constitution,⁴⁹ best known today in the form of either William Lloyd Garrison’s total rejection of the text as a proslavery “agreement with hell”⁵⁰ or Frederick Douglass’s creative rereading of the text as a latent antislavery weapon.⁵¹ Then, during Reconstruction, the Thirteenth, Fourteenth, and Fifteenth Amendments formally embedded racial equality in the text.⁵² “At the height of Reconstruction,” Rana writes, a “creedal” vision of the United States as an egalitarian project “temporarily seized the stage” (p. 62). But in the late nineteenth century, he contends, as Jim Crow took hold and “Reconstruction receded, racially egalitarian readings of the Declaration and of the Constitution similarly began to fade away from mainstream politics” (pp. 62–63).

Constitutional faith faded too. Nascent industrial capitalism generated social and political tensions (pp. 78–79). At the same time, “[t]he closing of the frontier,” marked by the Census Bureau’s report in 1890⁵³ and famously memorialized in Frederick Jackson Turner’s frontier thesis,⁵⁴ “meant that there were no new Native lands to claim and thus soon no new property to divide” among settlers seeking to escape industrial wage labor and become independent landowners.⁵⁵ In those conditions of social conflict, many people came to believe that the Constitution created an outdated, inflexible system of government “ill-equipped to tackle” modern problems (p. 86). The progressive journalist Herbert Croly, for example, who had close ties to both the Republican president Theodore Roosevelt and the Democratic president Woodrow Wilson, argued that the adoption of the Constitution had been a “kind of conspiracy” by the “educated and wealthy classes,” who “bulldozed and cajoled the people into submitting to an alien and essentially obnoxious political system.”⁵⁶ As noted above, a broad swath of other commentators—from E.L. Godkin to W.E.B. Du Bois to Woodrow Wilson—similarly saw the Constitution as a tragic failure.⁵⁷

Labor activists and progressive reformers became especially jaded (pp. 91, 97). They argued that the “political order” created by the Constitution “exacerbated the society’s hierarchical tendencies” (p. 113). The Constitution’s own structure entrenched antimajoritarianism through the Senate, the Electoral College, and the high bar for Article V amendment,⁵⁸ while industrial capitalism concentrated economic power, especially “personal power” over workers, in a small class of wealthy elites (p. 113). Critics of the Constitution argued that those two sources of minority rule—an antimajoritarian political structure and economic inequality—reinforced each other as wealth brought political power (p. 131). Charles Beard’s 1913 book An Economic Interpretation of the Constitution of the United States is emblematic of that critique.⁵⁹

A wide range of activists, therefore, demanded sweeping structural changes. In 1912, for example, Teddy Roosevelt’s Progressive Party advocated for the direct election of Senators and for “such alterations in the fundamental law of . . . the United States as shall insure the representative character of the government,” including “a more easy and expeditious method of amending the federal constitution.”⁶⁰ In the same election, the Socialist Party of America (SPA) called for proportional representation, eliminating the Senate, constitutional amendment through simple majority, “the abolition of the power usurped by the Supreme Court . . . to pass upon the constitutionality of . . . legislation enacted by Congress,” and “a convention for the revision of the constitution.”⁶¹ Radical labor activists in the International Workers of the World (IWW) held similar views (p. 140), while the Black radical socialists A. Philip Randolph and Chandler Owen argued in their magazine, The Messenger, that, as of 1919, the Constitution was “good in parts, but badly executed,”⁶² and the Reconstruction Amendments were “dead letter articles.”⁶³

Constitutional criticism grew so loud that Republican Senator Henry Cabot Lodge lamented in 1911:

[E]very one who is in distress, or in debt, or discontented, now assails the Constitution . . . . Every reformer of other people’s misdeeds—all of that numerous class which is ever seeking to promote virtue at somebody else’s expense—pause in their labors to point out the supposed shortcomings of our national charter. Every raw demagogue, every noisy agitator . . . all such people now lift their hands to tear down or remake the Constitution. In the House and Senate one can hear attacks upon it at any time and listen to men deriding its framers and their work.⁶⁴

Lodge’s hand-wringing suggests that the nation’s sacred text was in a spot of trouble.

The wave of constitutional discontent crested in the New Deal (p. 310). As the Supreme Court struck down popular economic legislation, a “broad[] belief” emerged that the Court “stood in the way of democracy” (p. 332). Some activists wanted to redesign the whole system. In 1935, Du Bois criticized “fetich-worship [sic] of the Constitution.”⁶⁵ A year later, Norman Thomas—the SPA’s six-time presidential candidate and a co-founder of the American Civil Liberties Union (p. 313)—argued that the country needed “a new fundamental law.”⁶⁶ New Dealers in the government took a slightly different approach, arguing that the Constitution did not need to be rewritten, it just needed to be interpreted in a different manner, employing what Rana calls a “radically anti-formalist reading” of the text.⁶⁷ Charles Beard christened this approach the “[L]iving Constitution”: an interpretive method that would replace the “cult of constitutional certitude” with flexible readings focused on practical governance.⁶⁸

Court-reform proposals percolated in the 1930s—including “term limits, supermajority requirements when the Court struck down congressional legislation, or the establishment of legislative overrides of judicial review”—and culminated in Franklin Roosevelt’s court-packing plan (p. 330). But when the Court swerved in the so-called “switch in time that saved nine,”⁶⁹ the public’s “will” to make “significant . . . reforms across the [Constitution’s] structure” dissipated and was “ultimately left untapped” (p. 350). Rana argues that, with the triumph of the New Deal, progressives thought they had won a permanent shift in constitutional government.⁷⁰ So they “made their peace” with the Constitution (p. 351) and failed to “genuinely alter[] the nature of American representative and judicial institutions” (p. 335). A 1937 statement by Labor’s Non-Partisan League captures the sentiment:

Some say that President Roosevelt can be trusted but that future Presidents might pack the Supreme Court with corporation tools. Yes, if the voters elect a reactionary President and a reactionary Senate to confirm the nomination, it is possible that this will happen. But it is not likely. Public opinion will prevent the Court from ever again sinking to the depths the present majority has brought it down to.⁷¹

Looking back from the 2020s, some might call those famous last words.

B. World War, Cold War, and the Rise of a New Constitutional Consensus

Part of why the progressive critique of the Constitution disappeared is that it won (p. 350). The Supreme Court embraced a less formalist interpretive method, which gave the political branches greater power over the economy, and reformers successfully embedded women’s suffrage and the direct election of senators in the text.⁷² But in addition to the demobilizing effects of those successful reforms, Rana argues that constitutional critique also disappeared because of the pressures of enforced constitutional loyalty during wartime, as the United States built a new national security state and overseas empire (pp. 23–25, 351–55). That process began with the Spanish-Cuban-American War in 1898 (p. 192). It accelerated in WWI (pp. 192, 225). And it really took off during the Cold War (pp. 383–85), as Americans increasingly embraced what Rana calls “national security Constitution worship” (p. 355). The perceived national security imperatives of the Cold War reshaped both foreign and domestic policy: The United States projected “global police power” abroad (pp. 480–81), while a “remarkable transformation in constitutional politics” began at home (p. 384). Those changes in foreign and domestic policy were deeply intertwined, and modern constitutional faith is the historically contingent result (p. 11).

The Spanish-Cuban-American War and the annexation of Puerto Rico, Hawai‘i, Guam, and the Philippines established the United States “on the international stage as a significant global military and economic force” (p. 167). But “these global ambitions immediately faced profound difficulty”—especially anticolonial resistance in the Philippines, which posed both the material problem of controlling a resistant population and the ideological problem of justifying that control under a constitution supposedly designed for republican self-government (p. 167). Therefore, Rana argues, “[i]n the crucible of the Philippine-American War, US politicians and officials began to forge” a new “account of the American global project” to legitimate colonial rule (p. 168). They distinguished U.S. power from European empire by portraying Europe “as motivated primarily by wealth extraction and racial domination” (pp. 168–69). The United States, in contrast, purportedly acted on “anti-slavery creedal narratives” and was, allegedly, just teaching “political lessons” in self-rule to colonial pupils (p. 169).

The Constitution thus became a justificatory tool for empire. Newspapers depicted the 1902 Philippine Organic Act, for example, which established a new civilian government under U.S. authority, as a “ ‘Bill of Rights’ for the Filipinos.”⁷³ And Woodrow Wilson, despite his own earlier criticism of the Constitution,⁷⁴ embraced American exceptionalism “on the global stage” (p. 212). Wilson said that the Constitution had created “enlightened processes of politics that were without precedent” in world history.⁷⁵ As a result, he argued, the United States had a duty to “giv[e] the Filipinos constitutional government.”⁷⁶ This colonialist ideology simultaneously framed nonwhite subject peoples as “unprepared for full independence” and asserted that the U.S. Constitution “provided the most effective building blocks and practical education for foreign peoples” (p. 214).

The ideological use of the Constitution to legitimate overseas U.S. power sped up during WWI. A mix of “pro-Constitution and pro-war organizations,” Rana writes, “along with public officials and corporate allies,” took up a “creedal constitutional narrative, honed in the wake of the 1898 Spanish-Cuban-American War,” to define the Constitution “as essential to national identity, and as distilling the values that Americans would fight for abroad and thereby extend to the world” (p. 225). Rana traces, for example, the overlapping leadership and the shared ideas of the National Security League (NSL) and the National Association for Constitutional Government (NACG) (p. 228). The NSL, despite its titular focus on national security, devoted resources to advocating for a new national holiday, “Constitution Day,” on the September 17 anniversary of the document’s signing (p. 236). The NACG, in turn, launched a new journal, Constitutional Review, in 1917 to call attention to the anticonstitutional dangers of both German militarism abroad and socialists and anarchists on the home front (p. 223). In the journal’s first issue, the NACG declared that progressive calls for “structural changes” to “American institutions” showed that the U.S. Constitution was “in danger of assassination in the house of its friends.”⁷⁷ National security required constitutional loyalty.

Groups like the NSL and the NACG did not just pursue “pro-Constitution educational campaign[s]” like journals and holidays (p. 236). They also supported more “muscular” forms of “government repression” (p. 247). Constitutional Review labeled antiwar activists “the enemy . . . within our gates,”⁷⁸ “covertly at work to undermine the Constitution.”⁷⁹ And the government employed the Espionage Act and the Sedition Act “for a massive and historically unparalleled federal assault on speech, dissent, and the rights of European immigrants.”⁸⁰ Rana convincingly concludes that “a significant element of pro-Constitution argument during the war and its aftermath . . . called for dramatically expanding the domestic security apparatus” and also “called on citizens to participate in acts of surveillance and, when necessary, violent reprisal” against socialists, pacifists, and anyone else voicing skepticism about the Constitution or the war (p. 248).

Perhaps surprisingly, the socialist Left responded to state repression in WWI by also embracing the language of constitutional rights. The feminist, antiwar, and labor activist Crystal Eastman explained:

But the war, which brought socialists and liberals together in the fight to maintain civil liberty, was as bad for the socialists as it was good for the liberals. The fight for free speech demanded constant reference to the Constitution and the Declaration of Independence. To demand that these documents be lived up to, was the most revolutionary thing a socialist leader could do, except go to jail. And from demanding that they should be lived up to, some of these leaders have apparently gotten into the habit of believing they will be lived up to, and that when they are, that will be the Social Revolution.⁸¹

Wartime repression, in Eastman’s view, drove the Left into the arms of the Constitution, as liberal free speech rights became the last line of defense against political persecution and outright criminal prosecution.

The Great Depression ushered in a new era of constitutional critique—culminating in the Switch in Time.⁸² Nevertheless, wartime emphasis on constitutional loyalty reemerged in WWII (p. 355) and accelerated from there, “reaching its zenith during the Cold War” (p. 252). Like WWI, Rana shows that WWII inspired pro-Constitution educational campaigns (p. 354) and “sustained the coerciveness of earlier national security Constitution worship” (p. 355), most notably with the mass internment of people of Japanese descent (pp. 376–81). But there were also “profound cultural differences between the politics of the two [world] wars” (p. 355). In particular—as Gerard Magliocca has shown—the New Dealers who ran the federal state apparatus in WWII focused on the Bill of Rights.⁸³ They used the liberties enshrined in the first ten amendments as a potent justification for waging war against fascism (pp. 362–65). That rhetorical move also gave the Constitution new democratic credentials (p. 374). In the 1930s, many had seen the Constitution as “an antimajoritarian roadblock to economic and social reform” (p. 374). Now, while war raged in the 1940s, “it offered a charter of personal autonomy—one that clarified the moral differences between an American way of life and that of fascist adversaries abroad” (p. 374).

Cold War nationalism brought that politics to its peak (p. 384). In the rivalry with the Soviet Union, the Constitution became the symbol of a distinctively American liberty (p. 394). It justified power projection abroad, as “American global primacy . . . became ethically rooted in the constitutional commitment of US policymakers” (p. 394). Simultaneously, the imperative of wartime loyalty “narrowed the domestic scope of acceptable argument about the Constitution” (p. 394). Cold War politics did yield some key democratic gains: As historians like Mary Dudziak have explained, the need to win allies in postcolonial nations created pressure to end Jim Crow.⁸⁴ But the Cold War also brought the McCarthy era (p. 463), leading to the intense repression of leftists like Du Bois.⁸⁵ And even after McCarthyism abated, Rana insightfully argues, Cold War liberals used the fear of McCarthyite mass hysteria as a rhetorical tool to defend the Constitution’s specifically antidemocratic features: They argued that the Constitution’s antimajoritarian mechanisms wisely prevented political excess and instead enabled gradualist reform (pp. 525–26).

Constitutional consensus permeated the public sphere. “Akin to the old National Security League,” Rana writes, the Truman and Eisenhower administrations “combined anti-communist crackdowns with new mass campaigns of constitutional education and celebration” (p. 472). The Freedom Train exhibit of Americana, for example, toured the country from 1947 to 1949 (p. 473). “[P]olitical and legal elites” also came to see the Supreme Court as “the premiere institution for safeguarding liberal constitutionalism,” making the Court “increasingly synonymous with the Constitution as such” (p. 526). That in turn meant “the legal profession” became “identified as the essential articulators of constitutional meaning,” and “the main scholarly repository of knowledge about broader American constitutional traditions moved from history and political science departments to law schools” (p. 526). Within law schools, the “Langdellian case method,” which focused on “appellate case law,” further defined Supreme Court decisions as the Constitution (pp. 558–59), while the professional position of “the Supreme Court reporter” emerged at major newspapers in the mid-1950s to interpret the Court’s pronouncements for the wider public (p. 559).

The increasingly Supreme Court-centric constitutional culture during the Cold War, Rana argues, “transform[ed] constitutional politics into constitutional law” (p. 555). And insofar as the Court rarely questions the legitimacy or practical value of the Constitution itself, that shift from constitutional politics to constitutional law “effectively removed from examination” the kinds of practical critiques of the text and the structures of U.S. government that had been central to constitutional discourse for everyone from Beard to Du Bois to Eastman to FDR.⁸⁶

There was a brief renaissance of radical constitutional imagination in the 1960s. As noted above, Martin Luther King, Jr. argued in 1968 that it was time to “approach[] areas where the voice of the Constitution is not clear,”⁸⁷ demanding “new forms of rights” and “push[ing]” the “concept of democracy” to “deeper levels of meaning.”⁸⁸ Rana also closely examines the 1970 Black Panther Party’s Revolutionary Peoples’ Constitutional Convention, which sought to replace the Constitution with a new, democratic, anticolonial one (pp. 571, 590). The Convention was deeply coalitional, as Panther activists like Afeni Shakur (p. 590) worked to unite “antiwar, feminist, Indigenous, and Black freedom activists” (p. 571), as well as “LGBTQ+ . . . activists” (p. 595). The Convention’s constitutional proposals included, among other things: the sovereign right for Puerto Rico and Indigenous nations to choose their political status; restitution for peoples abroad harmed by American power; “reparations” for Black Americans; “guaranteed adequate income for all,” “guaranteed paid maternity leave,” and the right to “health care, housing, food, clothing, transportation and education”; reforms in history education; “proportional representation” in the government; the abolition of the military draft; civilian oversight of the police; an “end to . . . sexism”; and the “right to be gay anytime, anyplace.”⁸⁹

The Convention offered a bracing constitutional vision for emancipation. But it was also, Rana writes, “the last twentieth-century coalitional and mass political attempt to break explicitly from the established constitutional system” (p. 571). The Panthers—and the Left more broadly—collapsed in the 1970s, partly because of real victories like ending the draft, and partly because of active government repression like the FBI’s COINTELPRO and the CIA’s Operation Chaos (pp. 569, 597–600). By the 1980s, progressive projects like the Equal Rights Amendment primarily sought inclusion in the existing constitutional order (p. 624), while the rising conservative legal movement built its model of originalism to roll back the liberal gains of the Warren Court (p. 615). Rana therefore argues that both originalism and “living constitutionalism”—despite their opposition to one another and their respective associations with conservative and progressive legal thought—represent a narrowing of the constitutional imagination.⁹⁰ They both “swim in the same currents of constitutional veneration” (p. 616), taking for granted basic structural questions about the political and economic system that used to be up for constitutional contestation (pp. 32–33). In 1987, bicentennial celebrations for the Constitution were widespread, leaving Justice Thurgood Marshall as a lonely voice of dissent (pp. 649–50). The celebrations, he said, risked becoming a form of idolatry—“little more than a blind pilgrimage to the shrine.”⁹¹

II. Twilight of the Constitutional Idols?

What can we learn from this narrative? Rana tracks how the pressures of twentieth-century global hegemony generated consensus faith in a creedal constitution—a nationalist account of the United States as an egalitarian beacon for the world, which in turn justified global police power (p. 3). This passionate attachment to the Constitution, he argues, limits the scope of reforms to democratize America today (p. 2) because it takes off the table the possibility of “institutional rupture[s]” like the ones that enabled “democratic expansion” during Reconstruction and the New Deal (pp. 679–80). The literary critic Lauren Berlant would call this “cruel optimism”: affective attachment to the very things that hinder our flourishing.⁹² To break out of that entrenched creedal optimism, Rana’s book uses history as a “tuning fork” to “sound[] out” false “idols,”⁹³ tracing the historical contingency of constitutional faith to open up the possibility that the world might be otherwise. In practical terms, Rana wants us to question whether progressive reformers “need to speak in a register that combine[s] Americanism with constitutional veneration” to succeed (p. 257). His answer is “no.”

There is much to recommend Rana’s view. As a purely historiographical matter, Rana convincingly connects domestic constitutional culture with U.S. foreign policy and geopolitics. Of course, given that forms of constitutional veneration took hold at earlier points in U.S. history (p. 20), it is hard to prove that modern constitutional reverence would not have coalesced without the global events that Rana describes. But he makes a strong case that the specific kind of constitutional faith that remains dominant today emerged in tandem with the ideological project of justifying power projection abroad. And he is especially persuasive when he traces how militant nationalists during WWI and the Cold War fused together pro-war and pro-Constitution ideology. Geopolitics thus infused constitutional discourse and thereby shaped American political identity.

That geopolitically capacious perspective is important. Despite the disciplinary developments of “transnational American Studies”⁹⁴ and “ ‘America in the World’ as a field in United States history,”⁹⁵ my experience is that those scholarly methods remain anchored mainly in history, American studies, ethnic studies, and literature departments. It is still the case that too few constitutional theorists working within U.S. law schools take an “internationalized” or “[t]ransnational” approach to studying—let alone teaching—the Constitution.⁹⁶ Rana’s book adds to a small but vital chorus of scholars carrying out that work in twentieth-century legal history.⁹⁷

As a matter of practical politics, too, Rana’s recovery of earlier, more expansive proposals for transformative constitutional reforms to the political and economic system should be inspiring for constitutional discourse today. The critiques leveled by earlier activists offer both a template for how to analyze the Constitution’s antidemocratic features and a sense of solidarity and legitimacy for those demanding greater democracy in the twenty-first century. For some time, progressive critiques of constitutional law have focused on criticizing an overly court-centric approach to reform.⁹⁸ Echoing that tradition, Rana valuably expands the lens to critique constitutional law as such and reopen the richer discourse of constitutional politics, allowing us to “think[] about constitutionalism” not only as what the text says or what courts do, but as an ongoing political contestation over the most basic structures of the social, political, and economic systems (p. 668). More aspects of our system, in other words, should be on the table for discussion and reform.

That said, there are potentially some methodological and political drawbacks to Rana’s approach. As for method, he mainly focuses on elite politicians like Woodrow Wilson, or still relatively elite, highly visible activists like Du Bois and King. As Rana admits, the figures his book depicts are all “elites of a sort” (p. 33). That approach is understandable: Rana aims to unpack the constitutional ideology of those in power, like President Wilson, or the constitutional perspectives of activists who, he says, “formulated and presented culturally salient views—views that tapped into underlying social bases and that enjoyed support from and influence on meaningful stakeholders” (p. 33). But pinpointing what is “culturally salient” is not easy—as Rana writes, “mass sentiment or public opinion” is “a notoriously tricky thing to capture” (p. 33). So his book is more an act of “social criticism” than a “comprehensive” history of modern views on the Constitution (p. 32).

This often top-down historiography—told through the legal and political ideas held by “elites” (p. 33)—could be enriched with more tools from social history’s bottom-up approach.⁹⁹ In recent decades, legal historians of civil rights have examined how grassroots Black activists and litigants in the nineteenth and twentieth centuries made powerful demands for rights, often in the language of constitutionalism.¹⁰⁰ Tomiko Brown-Nagin’s Courage to Dissent, for example, tells “the stories of citizens—descendants of slaves and heirs to Frederick Douglass’s tradition of protest—who expressed political dissent by laying claim to the Constitution.”¹⁰¹ Risa Goluboff’s book The Lost Promise of Civil Rights tellingly begins with voices from the grassroots: “Letters came,” the first line reads, and the book proceeds to examine everyday claims for constitutional rights that workers made in letters to the Department of Justice and the NAACP.¹⁰² Such grassroots perspectives on the meaning, value, and possibilities of constitutionalism could usefully leaven the views of the more elite actors whom Rana’s book foregrounds.

That is not just a methodological point. For such grassroots activists, the language of constitutional rights provided both powerful motivation and a shared vocabulary around which to organize a movement.¹⁰³ It therefore seems potentially counterproductive to leave behind too much shared belief in the egalitarian core of a creedal Constitution. It is possible—and I think valuable—to retain optimism for constitutional equality while jettisoning the jingoistic nationalism that Rana rightly condemns. Drawing on Rana’s work, the legal theorists Ryan Doerfler and Samuel Moyn have advocated building a “post-constitutional political culture[.]”¹⁰⁴ Indeed, they have argued that the Constitution is “broken” and should not be “reclaimed” by progressives.¹⁰⁵ I disagree with such a stark approach. Rhetorically abandoning the Constitution for a “post-constitutional political culture” is an unnecessarily austere cultural and political break. Instead, following the lead of the activists who changed the Constitution across the twentieth century—winning direct election of senators, women’s suffrage, the Civil Rights and Voting Rights Acts, and other things—the question now is which constitutional culture we should seek to build.

In the conclusion to his book, Rana frames his project not so much as a call to abandon constitutionalism per se, but instead as a pragmatic call to break free from the narrow constraints of constitutional law, return to wider constitutional politics, and evaluate which version of constitutional politics will be best. He thus advocates an “instrumentalist” orientation that “prioritize[s] reforms based on a combined assessment: feasibility in the moment, utility for movement-building, and the relative material and political power it extends to underlying communities,” on both “shorter-term” and “longer-term” horizons (p. 678). He likewise encourages a “coalition-building” and “majority-first approach” (pp. 683–84). The pragmatistic chord that Rana strikes at the end of the book should, I think, be the overarching theme. And judged from such a pragmatic perspective, constitutionalism has frequently offered a shared vocabulary through which to assemble political coalitions and a motivating force to mobilize electoral majorities.¹⁰⁶

The rich language of constitutionalism is highly malleable, as Rana’s book shows. It therefore does not need to be abandoned wholesale. Constitutionalism can still be re-expanded to the broader political language, concerned with the material distribution of political and economic power, that it used to be.¹⁰⁷

III. Toward a New Constitutional Politics

What would be required to foster a more progressive—or even just a more open-minded, less legalistically constrained—constitutional politics? Building on Rana’s own proposals,¹⁰⁸ this Part briefly sketches some possible reforms in the (A) economic, (B) political, (C) cultural, and (D) educational systems that could, at least over the long term, expand the field for constitutional imagination and contestation. Expanding the constitutional imagination in a more democratic and egalitarian direction could then enable further substantive reforms across a range of legal issues.

A. The Economics of Constitutional Politics

Perhaps most importantly, expanding the scope of “constitutionalism” to include “political economy” (p. 671) is a project that itself depends on altering the material conditions of our existing political economy.¹⁰⁹ Those material conditions play a significant role in shaping which ideas about the law can be expressed, widely circulated, and pursued in political campaigns.¹¹⁰ In particular, the labor movement at mid-century—robust, organized, mobilized, and assertive—was critical for progressive electoral victories.¹¹¹ Legal reforms to build grassroots-movement power could thus create feedback loops that further change our political economy and constitutional politics. Laws that strengthen organized labor or enable organizing and collective action by tenants or debtors, for example, could beget further shifts in the discursive landscape that could help break open calcified, constraining constitutional ideologies.¹¹² Redistributive and predistributive economic policies to democratize work, wealth, income, workplace power, and welfare rights could have democratizing effects for our wider constitutional politics, too.¹¹³

B. The Politics of Constitutional Politics

Legal changes to democratize our political system could, if enacted, similarly snowball. Over the long term, legislation to expand voting rights, ban partisan gerrymandering, tighten campaign finance rules,¹¹⁴ provide statehood for Washington, D.C. (p. 678), and offer a meaningful choice on future status for Puerto Rico¹¹⁵ would all bring more voices into democratic decisionmaking. That, in turn, could enable more substantive reforms, like the changes to enhance labor power just discussed,¹¹⁶ that would further empower those whose preferences have all too often been left out of the political process.¹¹⁷ Although some of those changes seem out of reach in our current political landscape, voting rights and gerrymandering reforms have had a surprising degree of success at the state level over the last decade—in both conservative- and progressive-leaning states¹¹⁸—and such democratizing steps have the potential to beget further democratic reforms. On the electoral front, big-tent legal campaigns—like the nationwide effort to protect abortion rights,¹¹⁹ often through state constitutions—still offer both a path to assemble a wide coalition and, substantively, a democratizing project of gender equality.¹²⁰ Coalition-based political strategies and more democratically inclusive political processes remain crucial to renew constitutional culture and enable more transformative change.

C. The Cultural Infrastructure of Constitutional Politics

We should also take seriously the role of culture in constitutional culture.¹²¹ One of Rana’s contributions is to show, in impressive detail, how debates about economics and politics relate to cultural processes—to what the public “imagine[s] when they discuss[] the Constitution.”¹²² For legal scholars, that suggests that it is worth mapping out how activists construct and use what I have called the “cultural infrastructure of legal change”: the cultural venues, like newspapers and magazines, that circulate legal ideas in the public sphere.¹²³ Rana’s book offers a superb model of such cultural analysis. He insightfully examines, for example, how the National Security League funded and distributed books on the Constitution and how the National Association for Constitutional Government launched the journal Constitutional Review for a mix of pro-Constitution, pro-business, and pro-war goals (pp. 223–29). Tracing the print culture (or digital media) ecosystems that underpin legal culture is an important but still underutilized tool to understand how people have changed the law—and how the law can be changed again. Legal history, constitutional theory, and law and literature studies should all take seriously, as Rana does, the highly specific cultural networks through which legal ideas move.¹²⁴

Activists advancing legal reforms should likewise take constitutional culture into account. Legal discourse cannot be severed from the cultural ecosystem through which it percolates, meaning that those cultural channels are themselves potentially important sites for reform. For example, bipartisan legislators have sponsored a bill to publicly support local news,¹²⁵ which would help fight “the threat that news deserts pose to American democracy.”¹²⁶ Similarly, as debates swirl about reforming the Supreme Court, activists might explore not only concrete changes to the Court and its procedures, but also changes that could, more diffusely, begin to shift the Court’s place and perception in American culture.¹²⁷

D. Legal Pedagogy and Constitutional Politics

Finally, legal education is a primary site where constitutional culture takes form. Rana advocates “repositioning (or demoting) . . . the constitutional lawyer” in the public imagination in order to claim “popular ownership of the memory, terms, and ambitions of constitutional politics” (p. 663). That means locating constitutional politics in legislatures more so than in courts (p. 663). But it also means teaching constitutional law differently (pp. 656–59). If, as Rana contends, the Langdellian case method in law schools reinforced the Cold War trend of identifying the Supreme Court’s decisions as the Constitution (pp. 558–59), then re-expanding our constitutional politics requires pedagogical approaches that give students a wide variety of tools not only to practice doctrinally competent constitutional law, but also to think practically, critically, and independently about the Constitution and its place in society.

Concretely, I think legal pedagogy should incorporate more legal history—including more history on how the Constitution has shaped U.S. society and how grassroots legal activists have reshaped the law.¹²⁸ Such perspectives provide more opportunity for a critical grasp of the Constitution in practice: as an object in the world to be understood, not just a set of doctrinal rules to be mastered.¹²⁹ To that end, more team teaching with humanities and social sciences professors would be a welcome development in law schools, and—somewhat paradoxically, given Rana’s call to de-emphasize constitutional faith—the mandatory Constitutional Law course should likely be a two-course sequence to accommodate more, and more varied, material. As law schools experiment with new approaches to pedagogy,¹³⁰ constitutional law seems particularly ripe for innovation.

Conclusion

In 1921, W.E.B. Du Bois wrote that there was a rising current of reform energy, in the United States and around the world, to redistribute political and economic power from the elites to the masses.¹³¹ Du Bois said that he did not “know just what form” that change was “going to take,” but he welcomed experimentation and was “not prepared to dogmatize.”¹³² He suggested a similarly pragmatic approach to law in 1935 when he criticized “fetich-worship [sic] of the Constitution.”¹³³ What is needed today is likewise to reject constitutional dogmatisms––while still defending crucial constitutional rights––and to embrace experimentation in the name of wider democracy. As Rana’s book contends, it is time to move from a metaphysical faith in the Constitution to a more grounded, pragmatic faith that “We the People”¹³⁴ can democratically shape our own destiny.

* Assistant Professor of Law and, by courtesy, African American Studies, English, and History, University of Houston Law Center.