Aziz Rana's "The Constitutional Bind"

Aziz Rana is the incoming J. Donald Monan, S.J., University Professor of Law and Government at Boston College. His writing has appeared in the Washington Post, Dissent, n+1, the Boston Review, and Jacobin. He is the author of The Two Faces of American Freedom.

Rana applied the "Page 99 Test" to his new book, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, and reported the following:

Page 99 explores the early twentieth century changes various reformers and activists proposed to the federal courts, given the growing sense that the judiciary was beholden to business interests in a way that thwarted essential and widely backed policies for addressing extreme economic inequality and workplace domination. These judicial reforms would have “dramatically restructured” the bench through everything from term limits to checks on the power of judges to overturn legislation, such as by requiring “supermajorities for Supreme Court decisions to be binding” or “granting Congress the power to override court rulings through legislative action.” The page then highlights how discontent with the Supreme Court spilled over into concerns about whether “the constitutional system as a whole was truly democratic.” For a range of activists at the time, the Court’s intransigence seemed of a piece with how numerous features of the constitutional system, as embodied by the state-based structures of the Senate and the Electoral College, placed profound hurdles in the path of broad sentiment.

Taking a step back, the goal of the discussion on page 99 is to underscore a feature of that era’s constitutional culture that would be surprising for many Americans today. In those years, politically relevant politicians, commentators, and activists thought seriously about the need for radical constitutional change. They treated the existing text as a template for legal-political governance, just one among many possibilities, and that increasingly failed to fulfill collective ends. In recent decades, however, the Constitution instead has become deeply enmeshed with a pervasive and shared story of national peoplehood. It is not simply a decision-making apparatus, but also stands for a vision of the American project—intertwining liberal equality, market capitalism, and extensive checks and balances at home with the promotion of American primacy abroad. By contrast, at the beginning of the last century none of these ideological components of today’s constitutional compact would have been taken for granted. These were disparate strands that did not necessarily fit together and the document itself faced real skepticism during a period of profound political uncertainty.

The Constitution Bind is thus not an ideal fit for the Page 99 Test, since the page only captures a small slice of the book’s overall arguments. Still, page 99 does offer context for the book’s larger animating question: How did Americans come to embrace, so deeply, their Constitution along with a very specific account of text and nation? I argue that this particular embrace is a distinctly twentieth century development, one tied—perhaps surprisingly—as much to transforms in the global system as to those at home. It was bound up with the United States’ move from a regional settler polity to a globally dominant power. In hinting at this shift, page 99 speaks to the pre-history of modern constitutional veneration. It presents the conflicts that swirled before our more familiar narratives took hold.

At the same time, page 99 also provides a glimpse into another central element of the book. I discuss how the official story of the Constitution is exhausted today. This is because many of the critiques from that first Gilded Age have proven accurate, and the existing legal-political system—along with the vision of U.S. exceptionalism that eventually grew around it—does not now serve most Americans. As a consequence, there is value in thinking deeply again about the range of alternative constitutional visions that once circulated in public debate. In this way, the reforms on page 99 are an initial invocation of the vast array of ideas developed by Black, Indigenous, feminist, labor, and immigrant reformers across large swathes of the twentieth century. Today, their visions remain vital, if under-utilized, starting points for confronting our own dilemmas.

Visit Aziz Rana's website.

--Marshal Zeringue