The Fourteenth Amendment to the United States Constitution was ratified in 1868 to reverse the Supreme Court’s infamous decision in Dred Scott v. Sandford, which held that African Americans, whether free or enslaved, were not citizens. Rebuking the Court, the Amendment established that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof,” were “citizens of the United States and of the State wherein they reside,” with “privileges [and] immunities” that no state may abridge, and rights to “due process of law” and “the equal protection of the laws.” But 37 years later, the Supreme Court in Lochner v. New York used this emancipatory amendment to find that “due process of law” protects “[t]he general right [of an employer] to make a contract in relation to his business” and that a state law limiting the hours of bakers is “an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts.” In 2022, in Dobbs v. Jackson Women's Health Organization, the Court reversed Roe v. Wade and held that “due process of law” did not protect reproductive choice. A constitutional right to terminate pregnancies, protected for 49 years, evaporated.
None of the language of the Fourteenth Amendment changed in these gyrations. Yet, despite this incongruous fact, the Constitution is commonly viewed as an almost sacred text, and not simply as a legal document through which, as the text says, “We the People” establish the structure and nature of the government. In The Constitutional Bind: How Americans Came to Idolize the Document that Fails Them (University of Chicago Press, 2024), Boston College Professor of Law and Politics Aziz Rana examines in great depth how the Constitution became a sacred text, how the idolization of the Constitution leads to thwarting and eroding democracy, different views of the Constitution across our history, and how we can move forward with a less idealized understanding of the Constitution and constitutional reform.
Rana’s central thesis is that contemporary American political culture is constrained by a concept he calls “creedal constitutionalism” – a near-sacred reverence for the written U.S. Constitution, which is viewed as embodying timeless, redemptive democratic principles. He argues that this reverence is a distinctly twentieth-century phenomenon. This idolization acts as a “bind” because it masks the fact that the original and current constitutional order is deeply undemocratic and structurally benefits entrenched elites (corporate, racial, and otherwise). It blocks reform and funnels aspirations for change into narrow, often judicial, interpretations of the existing, flawed text, and thereby undermines the possibility of deeper, transformational political and economic change.
The Constitution has not always been worshipped. Rana shows how, in the nineteenth century, early radical critics, including figures like Frederick Douglass, saw the system as fundamentally flawed and in need of systemic overhaul. Douglass viewed the 1787 document as a “covenant with death” because it legitimized and protected chattel slavery. W.E.B. Du Bois’ Black Reconstruction emphasized how labor insurgency and military rule in the Reconstruction South created radical possibilities that were later suppressed and enabled by reactionary interpretations of the constitutional text by the Supreme Court, most infamously in Plessy v. Ferguson, which held that the “equal protection of the laws” under the Fourteenth Amendment permitted “separate but equal” public accommodations for Blacks and whites. This laid a legal foundation for Jim Crow, an 80-year regime of authoritarian racial terror in the South. In 1970, the Black Panther Party convened a Revolutionary People’s Constitutional Convention, which envisioned and demanded new rights centered on resource redistribution, guaranteed employment, healthcare, and housing that went far beyond the limited framework of procedural rights that mid-twentieth-century creedal constitutionalism embraced.
Beyond African Americans’ struggles for justice and equality, Raza documents exhaustively how other groups seeking social change adopted a critical stance toward the Constitution. Populist, socialist, and feminist movements criticized the constitutional structure, arguing it was designed to insulate property and elite economic interests from popular control. Populists saw the numerous veto points in the Constitution – mechanisms like the Senate’s disproportionate power and the judiciary’s self-appointed role as the ultimate arbiter of what the document requires – as structural features that allowed a wealthy minority to block reforms favored by the majority of working people. Rana highlights Populist critiques of key Supreme Court decisions where the judiciary was seen as enforcing the interests of capital over the popular will, subordinating democratic action to property rights. This critique was vividly borne out in the Lochner case. Creedal reverence for the Constitution was largely formed in the twentieth century, coinciding with the rise of U.S. global dominance and the Cold War. Venerating the Constitution as the embodiment of liberty served a geopolitical purpose, contrasting the U.S. system with totalitarian foreign states. Domestically, this veneration helped silence systemic domestic critiques (from labor, Black liberation, feminist, and socialist movements) that sought to fundamentally remake the state and economy.
Rana argues we cannot move forward to greater democracy and social justice unless the place of the Constitution is called into question. First, the Constitution must be demystified and subject to political debate. Second, Rana proposes to move away from piecemeal reforms and commit to reconstructing the system on democratic terms based on principles of one person, one vote, and majority rule, where citizens, through elections and mass movements, can effectively intervene to create institutions and programs that are responsive to popular needs. Echoing the critiques of the historical movements he describes, Rana’s book highlights the necessity of addressing the anti-majoritarian veto points, limiting judicial power, and overcoming gridlock built into the structure of the Constitution through reforms like the elimination of the Electoral College, expanding the Supreme Court, and term limits for justices.
More often than not through our history, the Supreme Court has failed as a bulwark against authoritarianism. Today’s right-wing majority on the Supreme Court not only fails in defending democracy but is an active partner in promoting authoritarianism – from enabling billionaires to fund candidates, to eviscerating administrative agencies that protect consumers, the environment, and union rights, to repressing reproductive freedom and enabling state funding of Christian Nationalism. Most egregiously, they declared that the President is above the law when exercising the vast powers the Constitution grants him.
Demystifying and reforming the Constitution is an imperative as we rebuild from the wreckage of Trump and MAGA. With the help of a reactionary conservative movement and the right-wing majority it brought to the Supreme Court, the same revered Constitution that figures so largely in narratives of the progress of civil liberties and civil rights helped get us where we are today. To recover from Trump and MAGA a series of fundamental reforms – a Third Reconstruction – will be required to enhance democratic rights and create a government “of the people” instead of kleptocrat billionaires. Just as the Constitution was reformed in the First Reconstruction following the Civil War through the enactment of the Thirteenth through Fifteenth Amendments, the Constitution must be reformed today to enable democracy. The first step to reforming the Constitution is to stop worshipping it.
