It’s Time to Reimagine the Constitutional Order

It was Groundhog Day in America. Once again, according to the center-left commentariat, the Republic was facing a five-alarm fire. Between the dismal state of President Joe Biden’s reelection campaign and a series of suffocating rulings by the Supreme Court, the well-being of our civic life appeared bleak. With the arrival of Vice President Kamala Harris as the likely Democratic nominee, such anxieties have been briefly lulled. But the fact remains that this presidential election, much like the past two, is being branded as The Most Important Election of Our Lifetime. 

Since 2016, this exhausting consternation has more or less become the bog-standard emotion of modern liberalism. Their response to the rise of MAGA has been to lean into a conservationist approach to politics, one that seeks to preserve public institutions without understanding the inherent contradictions of America’s constitutional architecture.

Instead of responding to an ever-growing share of the electorate who intuitively understand that their interests are not represented, many liberals have offered a bizarre, incongruous interpretation that posits America as a paradigmatic democracy and as one seemingly petrified by the scars of racial and gendered hierarchy.

The results have been underwhelming at their best and depressing at their worst. The project of forming a meaningful, multi-racial democracy feels so distant because rather than discussing the innate flaws of our system of government, day-to-day politicos have become more concerned with defending a sclerotic means of power distribution—one designed to prevent the “demos” portion of democracy from exercising influence on the social world we share.

Let’s assume—because we cannot understand their psychology with certainty—that the figureheads of American politics genuinely imagine the Shining City on the Hill, with its limited democracy, intractable judicial rule, and crushing legislative counterweights, is “the worst form of government except for all those other forms that have been tried from time to time,” as Winston Churchill once quipped. 

If this is all democracy can be, what we are left with is something akin to a hamster wheel built within a Skinner box. The will of the masses is kept on a single track that can only go backward or forward, and this motion is guided by an electoral process that typically presents a choice between food pellets and an electric shock. What we have maintained is a hyper-managed democracy at best. 

Contemporary constitutional scholarship demonstrates that this is very much what the Founding Fathers intended. And their fetishization of our democracy’s origins might present us with the foundational ideology for our current discontents: From Donald Trump’s uses and abuses to Joe Biden’s impotence. 

According to the scholar Michael Klarman in his book The Framers’ Coup, from the very beginning, the architects of American governance believed their creation to be almost divine in nature. In turn, those who crafted the document became a convent of secular saints. 

Klarman writes that it was James Madison in particular who sought to exalt the Founding Fathers due to “his belief that the people could not be trusted to intelligently rule themselves. Citizens must be taught through habit and tradition to obey constituted governmental authority, and adoration of the Founders served that purpose.”

“Without it,” Klarman continues, “the people might too frequently change their constitution…”

That continuity has persisted throughout the 250-year history of the republic. With notable exceptions like the 13th and the 19th Amendments, the assumptions of the original constitutional text—one that advocates a constrained form of democracy which would, per Madison “protect the minority of the opulent against the majority”—has remained largely intact. In the context of critical mechanisms like the power of the Supreme Court and the overinfluence of the Senate, we more or less govern ourselves the same way we did when the miasma theory of illness was still popular, and the Holy Roman Empire was still a geopolitical presence in Europe. 

But despite the blatant elitism and technocratic determination of the founders, popular liberal media continues to designate the origins of our democratic process as a noble, if imperfect ideal. In a recent interview with Jon Stewart, for example, the writer A.J. Jacobs paints a picture of an honorable if naive cohort of well-intentioned men who could have never foreseen how the apparatus they designed would be warped by so-called polarization and partisan bickering. 

Yet the political economy that, say, the Declaration’s key author Thomas Jefferson set in motion with the American order has delivered exactly what he envisioned. As the historian Greg Grandin has illustrated, it was Jefferson who preached (and governed towards) a very specific, innovative form of socio-political existence: One in which property ownership would be expanded to a property-owning settler class that would soon dominate the entire continental landmass. And it was the Constitution with its federalist jurisdiction which would shape and mold indigenous land into fertile communities of liberty and consumption. 

While this ostensibly did broaden democratic decision-making to a larger swath of people, the repercussions of a civic alignment designed around proprietary ownership continue to haunt us. A study from this year that examined local elections across 500 cities found that “turnout disparities by age and homeownership status are twice as large as those between Black and white voters, and are considerably larger in off-cycle contests.” 

Paired with the fact that low-income households are substantially less likely to participate in elections, it seems like we’re still operating under the assertion of John Jay—a Founder and the country’s first chief justice—who said that “those who own the country ought to govern it.” Though, in fairness, Jay probably wasn’t referring to rule by homeowner association.  

Caught in between the historical conditions of our establishing contract and its material consequences is the question of how we build a society where power is allocated across classes. Clearly, the python-like grip that our outmoded political methods have on collective decision-making counters majoritarian action. 

The solution, however, is simultaneously straightforward but would require undertaking the most daunting task in American political history. In response to the inherently authoritarian directive of the Founders, “The Constitution, the deepest norm in American politics, must be eroded,” the political scientist Corey Robin posited in an assessment of our flawed governmental practices. 

Despite its exalted status, questioning the purpose and efficacy of the Constitution has been around almost as long as the document’s existence. When I spoke with the law professor Aziz Rana about his latest book, The Constitutional Bind, he noted how the country went through several periods—the pre-Civil War and Interwar eras in particular—where the hegemony of the Constitution was routinely called into question. In particular, slavery abolitionists and civil rights activists like W.E.B. DuBois argued  how the Constitution seemed explicitly devised to consolidate the structural integrity of caste-based capitalism. 

“[Dubois] viewed the constitutional order as implementing deeply undemocratic arrangements that sustained both economic and racial hierarchy. Indeed, by this point in his life, he regarded American capitalism as a system interwoven with white supremacy,” Rana wrote. “And he further believed that overcoming the latter required replacing the former, along with all the legal-political structures that preserved both.”

Later, the chaos and anxiety of the Cold War brought what Rana calls a consolidation of the American model. The Constitution entered a new stage of fetishism, wherein it was treated as a symbol of Western ascendency. Since then, little public conversation has been had around what the next stage of the Republic might look like—even as both friends and foes have explored innovations in constitutional democracy.

“The fixation on our constitutional system has created a kind of cultural sense that any kind of constitutional democracy has to look like our U.S. Constitution….When actually if you just look around the world, the U.S. Constitution is pretty out of step with where constitutional politics has gone—precisely because of how undemocratic it is,” Rana told me. 

“And so other societies have simpler amendment processes like more extensive, actually technically stipulated rights provisions with socio-economic rights, environmental protections, women’s rights, Indigenous rights, you name it,” he added.

In essence, Rana explains, the United States is exceptional in that it’s “kind of out on an island” regarding modern democratic politics. This is why those on the Left distraught over the inflexibility of American politics must look to the constitutional arteries that fuel our minoritarian organs. 

The most obvious reforms have been in the discourse for quite some time: We’ll need to end the Electoral College, dismantle gerrymandered districts, terminate Citizens United, and reconfigure the Senate. But if we are serious about reimagining a world built on austerity, precarity, and economic domination, then these will only be the first steps in a larger legal project.

Not long ago, Franklin Delano Roosevelt proposed a second bill of rights that guaranteed housing, medical care, education, employment, and a living wage. These aren’t exactly radical propositions, as Rana noted— many countries throughout the world include such goals in their principal charters. This could be achieved by a constitutional referendum, a procedure which is hardly out of step in the modern era.

But, it would be limiting to settle for even that. Democratic experimentation, such as through voting on municipal budgets—as has been attempted in Bolivia and Venezuela—should be explored. And as the former Greek finance minister Yanis Varoufakis has recently prescribed, public banking, collective ownership of social media, and the democratization of corporations would all go a long way in building a society fit for the 21st century. It is here that we find a new understanding of what a government by the people, for the people can mean. I will only be comfortable calling America a democracy when the average person is given a consequential say in how our institutions operate. 

In the face of a multitude of economic, political, and environmental crises, assembling an updated social contract has never been more urgent. Instead of placating an approach designed to condense decision-making into the hands of the few, let’s free ourselves from a Constitution that has engendered a kind of corporatist kleptocracy—one that has distorted our understanding of what democracy can actually be.