The turbulent end of Donald Trump’s administration only reinforced something we’ve known for some time: the American political system is deep in crisis. While most of the country was horrified by the events of January 6, when Trump’s most committed followers stormed the US Capitol in a failed attempt to stop the certification of Joe Biden’s election victory, a substantial faction of the Republican Party seems willing to deepen its commitment to Trump-style politics and a fundamentally anti-democratic program. It seems certain that the coming years will be defined by sharp conflicts and perhaps incidents of political violence, mainly coming from the far right.
Is there any way out of this deadlock? The legal scholar Aziz Rana argues that the crisis can be traced to the undemocratic nature of America’s constitutional order, and that only a comprehensive program of democratic reform can avert a slide toward authoritarianism. He recently sat down with Socialist Forum to discuss the current political situation and the kind of constitutional program the democratic socialist Left should advance today.
Socialist Forum: We were treated to something of a crash course in the US constitution during the Trump administration, from impeachment to court appointments to the wrangling over the results of the presidential election. What do you think we’ve learned from all of this Sturm und Drang?
Aziz Rana: The main takeaway is that we have a constitutional system that is fundamentally flawed. The central eighteenth century architects of the federal constitution were deeply suspicious of mass democracy. They therefore created a legal-political framework that placed massive roadblocks in the path of ordinary people using the vote to exercise majority rule. From the founding to the present, the result has been a system that fractures the power of the vote and makes it very difficult for the most marginalized within society to have their voices heard let alone their needs met. At the same time, due to this system’s veto points and overall fragmentation, the larger order is especially conducive to capture by empowered elites —particularly corporations and forces of white supremacy.
I believe that this is one lesson of the recent Trump-led insurrection. The modern Republican Party, not unlike earlier reactionary entities, is deeply shaped by the incentives of the constitutional system. Given the nature of federalism, the Senate, the Supreme Court, the Electoral College, and gerrymandering in the House, the party has a disproportionate capacity to project power without a popular majority. This reality creates a drive within the party to view its strength as dependent on disenfranchisement and minority rule. It also means that actual multi-racial democracy becomes an almost existential threat to party elites. And it is not that big a leap from systematically suppressing votes, particularly those of non-whites minorities, to employing actual violence to overthrow elections. Indeed, from Southern secession to white resistance to Reconstruction and then later to desegregation, this has been precisely the defining and authoritarian move in the US of entrenched white elites contesting democracy. Their mob actions and racist violence were both lawless as well as facilitated by the minoritarian tendencies of the constitutional order.
But of course this is not the story about the constitution that most Americans grew up with. The document was usually presented as a near-perfect distillation of liberal democracy. But whatever the myths of the past, I think the last few years have made clear that the existing constitutional system not only makes it hard for us to address the country’s many social crises, but also critically exacerbates those crises.
In more mainstream quarters, the explanation for political dysfunction is often that we’ve gotten away from the wisdom of the founders and the solution is therefore to go back, not forward. This appeal to the eternal wisdom of the constitution seems very particular to the US. Why is this such a recurrent theme?
I believe that much of this has to do with the vision of politics that emerged during World War II and especially the Cold War. During these years, political elites organized their defense of the US’s status as the world’s dominant power around the idea that the country was an open and free society unlike its totalitarian foes. American nationalism became wrapped up with the claim that what made the US exceptional was how from the founding it had been committed to principles of liberty and equality. This deep cultural core, so the argument went, was why Americans had avoided the horrors of fascism or Stalinism.
In telling this story, the constitution became really essential. The text supposedly provided various safeguards, from the first amendment to the system of checks and balances, against totalitarian tyranny. But more than that, it was an institutional and ideological inheritance from the 1787 framers on how best to combine representative government with liberal values. As became often repeated, as long as Americans hued to those founding truths the country would remain free and it would serve as a global force for good.
The result of this Cold War context was a worshipful culture around the framers, which would have been out of place as late as the 1930s. During that earlier era of class conflict and labor protest, Madison, Hamilton, and company were often viewed as socio-economic elites concerned above all else with protecting their property and suspicious of the democratic impulses unleashed by the revolution. Yet, by the 1950s, this conversation flipped fundamentally. Mainstream politicians and commentators in both parties essentially embraced a perfectionist narrative of the framers, one that to this day proliferates in public life—buttressed seemingly every year by a new hagiographic biography extolling the wisdom of one founder or another.
I believe that a significant continuing effect of this climate is a real confusion, even among many left-liberals, about how to think of the relationship between constitutionalism and the 1787 constitution. Basic protections — from those guaranteeing dissent to positive socio-economic rights to education, health, and housing — are key to any truly democratic society. Indeed, in the early twentieth century, they were vigorously defended by socialists who both opposed the 1787 constitution and called for a genuinely rights-respecting legal-political order. From Eugene V. Debs and Crystal Eastman to W.E.B. Du Bois, their commitment to rights and democracy was a key reason why they called for the overcoming of the existing constitutional system, which they believed only weakly entrenched any of these protections.
But today, there is a continual tendency, say with how the Muslim Ban was opposed in public life, to revert back to a worshipful register vis-à-vis the federal constitution whenever activists want to invoke the importance of rights. It’s hard even for some on the left to separate between defending constitutionalism as such (including civil liberties or values of equal protection) and venerating in Cold War terms the 1787 constitution. In a sense, I think this difficulty highlights the ideological power of that 1950s moment, which very much was about reducing all accounts of constitutional democracy exclusively to the single Cold War American model.
The federal government has typically been the handmaiden of social progress in the US, and that might account for some of the left-liberal veneration of the constitutional system.
I think this is another central reason why it can be hard for left-liberals to repudiate the language of constitution worship. Many Americans continue to associate both the constitution and the Supreme Court with key civil liberties and civil rights victories, especially the Warren Court’s Brown v. Board of Education decision declaring “separate but equal” inherently unequal.
But it is really important to appreciate that those mid-twentieth century victories were not necessarily facilitated by the constitutional system. They were the product of a contingent set of postwar conditions—from the foreign policy need to win “hearts and minds” in Asia and Africa during the Cold War to the political strength of the labor movement. These contingent realities created a supermajority across national institutions behind a common set of policies: especially a limited social welfare state and racial reforms. In a sense, this was an exceptional period in which the massive anti-democratic structural roadblocks to even minor reform were temporarily overcome. But the problem is that many on the center-left, especially within the Democratic Party, often read the larger meaning of the constitutional system as a whole through these very historically particularly mid-twentieth century dynamics.
In a recent Jacobin article you survey the old Socialist Party’s orientation to these kinds of political and constitutional questions. What was their analysis of the constitutional system, and what were some of their programmatic proposals for changing it?
The Socialist Party critique of the constitutional system really mirrors what I mentioned at the beginning of our conversation. Socialists in the early twentieth century similarly argued that the American constitutional system’s underlying design framework was incompatible with mass democracy. Its endless veto points, from the Senate to the Supreme Court, fundamentally constrained popular power. At the same time, it allowed what Charles Edward Russell called an “invisible government” of plutocrats to silently wield their money and influence to shape political decision-making.
In particular, Socialists were deeply concerned with the extent to which unelected judges controlled the terms of any meaningful constitutional change. This was because the constitution itself was incredibly difficult to amend formally, requiring a two-thirds vote in both houses of Congress and then three fourths of the states to ratify. In essence, mobilized publics were deeply limited in their ability to use mass organization and the vote to shift basic design features of the overall system. Instead, most debates about constitutional change were funneled into the narrow domain of judge-driven textual interpretation. This meant that a small coterie of judges, selected through the presidency and the Senate and serving for life, dictated the terms of what counted as acceptable reform.
Moreover, for Socialists the problem of the constitution transcended its structural flaws alone. They argued that in Europe feudalism was sustained through the symbols of church and crown. But in the US, they argued that the constitution served a comparable symbolic role. Although presented as a concrete embodiment of the American democratic tradition, in truth the constitutional order actually reaffirmed rule by the few and promoted a culture of deference toward deeply undemocratic institutions and norms.
Socialists therefore called for a break from the culture of veneration and for a thoroughgoing democratization of the constitutional order, with many of their suggestions frankly still essential today. They sought to address the pathologies of gerrymandering and winner-take-all election by implementing proportional representation in the House of Representatives and at the state and local levels. They demanded the abolition of both the Electoral College and the Senate–or failing the eradication of the Senate, at least its dramatic restructuring on terms far more compatible with popular representation. They argued that there should be significant court reform for the federal judiciary, including term limits, retirement ages, dramatic expansions to the number of judges on the Supreme Court (de-emphasizing the power of any one judge), and either the total elimination of judicial review or massive shifts in how review operated.
These are just some of their concrete suggestions. But perhaps their main contention was that along with overhauling the text, at a deeper level the way that Americans imagined what defined a constitution had to shift. Mobilized publics needed to be able to intervene in constitutional politics through mass organization, negotiating and renegotiating the terms of the existing order in response to actual social and material demands. This is why they focused especially on a much easier amendment process–something that became a persistent national platform demand for the first third of the twentieth century. This change was meant both to democratize the electoral system and to make constitutional and legislative processes far more equivalent. The text could then include detailed policy goals, real alterations to the governing structure, and extensive positive economic and social rights provisions.
How did the Socialists link these sorts of political and constitutional demands, which can often seem arcane or of interest only to intellectuals, to the rest of their program?
Socialists understood all the elements of their agenda as critically about power building. How do you create a society in which those most oppressed actually have the material and political capacity to impose their interests and gain equal and effective freedom? For this reason, they didn’t necessarily separate between economic demands and constitutional demands. An eight hour day and strong protections for unionizing and the right to strike all increased the bargaining power of workers at the point of production. Similarly, democratic alterations to the constitutional system, like simplifying the amendment process or abolishing the Senate, also enhanced the bargaining power of workers, but in the political system. Each reform shifted the basic distribution of power in the society and made it harder for business and racial elites to dominate either economic or legal-political life.
Past radicals argued that socialism and democracy inherently went together, you could not have one without the other. So they formulated a plethora of specific demands that could be pursued simultaneously, each of which would improve the capacity of working people to assert their own interests.
As a last point, they also thought really strategically about their agenda as a whole. Many Socialists may have wanted a constitutional convention in the abstract, but they understood that actually having one—given the power of reactionary forces in society during the Gilded Age—may not be a good idea. They thus focused on strategic interventions that if implemented could begin to improvise a new social order out of the hierarchy and authoritarianism of the old.
Before the Socialist Party, abolitionists of different stripes clashed over whether the constitution was a pro-slavery or an anti-slavery document. Is there anything today’s Left can learn from those debates?
I take two things from those nineteenth century debates. First, I personally side with Wendell Phillips and those that argued that the constitution was a pro-slavery document. The 1787 structure, with everything from the three-fifths clause to the centrality of state-based representation to the electoral process and the federal judiciary, amplified the power of slavers in the national government. I think appreciating this is key to making sense of our own present moment. It is many of those very same anti-democratic constitutional tools that white reactionary elites are employing today to oppose the entrenchment of a multi-racial democracy in the US.
But, secondly, I’d also say that whether one believes that the constitution can be reformed and redeemed, as those like Frederick Douglass contended, or must be rejected wholesale need not be front and center in our disputes. Ultimately, during Reconstruction both Douglass and Phillips worked together on a common and radical agenda for constitutional transformation, centered around Black enfranchisement as well as economic and political freedom. In other words, they arrived at a practical program that—if it had been more completely implemented—would have transformed the basic terms of American life, even if they disagreed in the past on the philosophical question of whether to redeem or reject the constitution.
Similarly today, I may have strong views about that first-order philosophical debate—I think the constitution has to be transcended rather than redeemed. And I also think that there are stakes to this philosophical matter. In my view, holding on to the idea of redeeming the constitution can veer too easily into the Cold War language of restoration and reverence. But I also think as a matter of political organizing and action that the central goal is to build a popular majority. This majority may well include constituents with competing narratives of nation and constitution, but would nonetheless be committed to the basic reforms necessary for genuinely democratizing our governing order.
Do you think fundamental changes in the constitutional order are possible to achieve in today’s United States without triggering some kind of secession or violent resistance movement?
To me, a lesson of the Trump-led insurrection at the Capitol is that failing to address the undemocratic terms of the constitutional order actually spurs the authoritarian tendencies of the right, including the potential for more violent resistance. Elites in the Republican Party have largely embraced that their coalition is a minority one that needs anti-majoritarian tools to wield power. Again, many of them see democracy as a threat to their power and for that reason the party today is itself an existential threat to democracy. We can see this in the response to the Biden victory. The November election was not all that bad for Republicans. A centrist president was elected, Republicans picked up seats in the House, they should have held onto the Senate, and they now enjoy generational control over the Supreme Court. And yet Trump—backed by key elected officials and the main party organs—nonetheless attempted to overthrow a duly elected government. And even in the wake of the violence, a core objective moving forward for the party continues to be the disenfranchisement and suppression of major voting blocks, especially people of color.
To my mind, any effort to hold Trump and others accountable that fails to address the constitutional order simply kicks the problems down the line. Basic changes must be pursued now, in this moment. Only by imposing fundamental democratic reforms can the longstanding authoritarian impulses in American life be contained. As just a beginning, this means immediately passing H.R. 1, which would extend the franchise, combat gerrymandering, and reduce donor influence, as well as additional measures to restructure House districts and create the conditions for proportional representation. It also entails moving swiftly toward D.C. statehood, the end to the colonial status of Puerto Rico and all the territories, and the abolition of the Electoral College.
There is no doubt that the right will view such a basic implementation of democratic principle as an attack on its ability to wield power. It will likely repeat racist claims of “voter fraud”—a longstanding Jim Crow argument—and take advantage of whatever minoritarian tools are at its disposal, even potentially fomenting more violence. But unless these measures are pursued I see no solution to the country’s current spiral. In fact, I think it’s also important to recognize that the great moments of democratic struggle in the US have all faced violent reaction, whether we’re discussing the Civil War and Reconstruction, anti-labor suppression in the early twentieth century, or the 1960s civil rights movement. These were periods of intense political conflict, and I’m not sure that conflict can be entirely wished away. The options feel like the country either remains trapped in its current paralysis, with multiplying social crises and a broken legal-political order, or those in the US press ahead for genuine change. I don’t see any other way out of the present impasse except by implementing a far more democratic institutional system and in the process politically breaking the right in its current form.
What kinds of demands and proposals should an organization like DSA make regarding that kind of basic reform agenda?
For starters, I think that there is a concrete left-liberal agenda on the table that is absolutely worth supporting. I’ve already mentioned elements of this agenda, which also includes ending felony disenfranchisement and significant court reform. It’s worth saying here that socialists and moderate Democrats can support some of the same policies but for different ultimate ends. For centrist politicians, they may like H.R.1 because it’s a technocratic fix to the electoral system. It solves specific problems of polarization or money in politics and so buttresses the existing institutions. But from my perspective, socialists should defend these pragmatic reforms because they have revolutionary implications. In other words, they increase the practical power of marginalized groups and make it easier for those oppressed to assert influence going forward in political life. These reforms open up the system to greater and more radical potential changes in the future.
But beyond what’s already on the table, I also think that DSA and other Left organizations have a responsibility to push the imaginative horizon. In particular, this means reclaiming the old Socialist call for a fundamentally new theory of constitution design, one that fully embraces mass democracy. As part of this, I’d like to see support for a simplified amendment process, key for claiming control of the constitution back from the courts and creating a truly popular constitutional politics. And I’d also like to see socialists push beyond discussions of voter suppression to accounts of what genuine universal suffrage requires. What does taking the right to vote seriously mean in a country like the United States? I believe that in a society with millions of migrant workers, denied any real legal protections and consigned to oppressive labor conditions, making the franchise based on residence rather than citizenship is essential. Resident voting should be a basic element of a socialist electoral and constitutional platform. These are just a couple thoughts, but the overarching goal should be to force Americans to confront finally what democracy actually entails.