Constitutional Law Professor: Americans Must STOP “Worshiping” the Constitution

By Selwyn Duke

Years ago, comedian/commentator Bill Maher complained that too many Americans think the Ten Amendments are the Ten Commandments. (In reality, people such as Maher think the Ten Commandments are the Ten Amendments.) Yet now this sentiment is coming from someone who, one might hope, should know better: A constitutional law professor who insists that we must stop “worshiping” the Constitution.

The call is in a new book titled The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, written by one Aziz Rana, a professor at Boston College Law School.

As for his book’s thesis, “Rana argues that today’s reverence for the Constitution—among both Democrats and Republicans—is a distinctive product of the 20th century and the Cold War,” stated The Nation’s Daniel Steinmetz-Jenkins, who recently interviewed the academic. “A culture of reverence around the Constitution grew, Rana observes, as the United States—seeking global dominance—offered it as an anti-imperial paradigm for all those foreign states emerging from colonial rule.” 

One may first wonder, given today’s poor civics teaching and rampant ignorance: Where is all this “reverence” for the Constitution hiding? Second, note that Founder James Madison cited the document in 1794 when opposing a $15,000 appropriation for French refugees, saying, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” Many other early American statesmen made essentially the same argument, too, when addressing unconstitutional bills. In other words, respect for the Constitution appears to greatly predate the 20th century.

But Rana makes his case. “Outside the US, constitutions are often rules for governing, which may or may not remain effective,” he says in The Nation interview. “When these legal-political orders break down or social upheaval brings new elites and alliances to power, old documents can be jettisoned and new ones written. Societies typically do not treat their written constitutions as being at the core of their national identity.”

To be clear, constitutionalists don’t “worship” the Constitution (only God deserves worship); they respect it. But constitutions that can change every time new elites and alliances come to power have little raison d’être, for they can’t provide governmental stability. Having a constitution that will change with every new political wind is akin to having no constitution at all.

Nonetheless, Rana believes that we’re hamstrung and imperiled by our Constitution. “The country today is wracked by a series of unfolding crises—intense police and military violence at home and abroad, financial crisis, extreme class inequalities, the carceral state’s generational effects on poor and minority communities, white authoritarianism, and ecological disaster, to name a few,” he explains. “Our political class has seemed paralyzed in the face of these crises, and our constitutional system has only intensified them.”

They only appear paralyzed, however, because these “crises” don’t exist. What “police and military violence at home and abroad” is Rana talking about? What financial crisis, other than that created by unconstitutional government spending, is at issue? In addition, inequality is irrelevant (explanation here), imprisoning criminals is necessary, and “white authoritarianism” is as imaginary as anthropogenic climate change (“ecological disaster”).

Yet even if the above crises were real, what extra-constitutional means — or what amendments — would Rana propose as remedy?

As to possible alternatives to our Constitution, the professor speaks positively of a “competing archive” that “ranges across social movements and even transnational identities, embodying perspectives grounded in Black, Indigenous, feminist, labor, immigrant, and Third World politics.” Yes, definitely a consideration. “Third World politics” has worked so well for the Third World, after all.

In reality, many constitutionalists might like to make certain changes to the Constitution, illustrating how they don’t “worship” it. But they also grasp something, a point expressed well by an MSN commenter.

“Imperfect, but it’s the basic contract of America,” the poster wrote, responding to the Rana interview. “If I had agreed to pay for a subscription to The Nation, would you want me to refuse to pay, saying I don’t worship the contract?”

To expand on this point, it’s not surprising that pseudo-elites such as Rana are displeased with a contract that by securing rights for all — including the weak — limits the powerful’s power. They’d rather effect change quickly via establishment control, whether by judicial or bureaucratic fiat or technocratic determination.

But these are just fancy, euphemistic ways of saying we’ll be a land not of laws, but men (the Constitution is the supreme law of the land). It also subjects us to the programs of, as Rana put it, “new elites and alliances,” which are often just flights of fancy — the latest shiny thing.

As to this, realize that our Constitution represents governmental tradition, and what is “tradition”? Philosopher G.K. Chesterton called it “democracy extended through time” and the “democracy of the dead.” For tradition exists only because the majority of people, over the ages, have essentially “voted” for it by actively or tacitly endorsing it.

It’s likewise with the Constitution. If enough Americans actually had wanted it changed or do now, they could have done so, or do so now, via one of our two amendment processes. Sure, they’re long, involved processes — by design. That’s a mandated “Take a deep breath and count to 10” serving as a firewall against fits of emotionalism, against legislative “mob justice.” Without it, more likely are mistakes such as the ancient Athenians’, when they voted to execute Socrates and then regretted it soon after.

People who complain about the difficulty of constitutional alteration may be tacitly admitting their ideas aren’t good ones. They also seem like spoiled brats demanding immediate gratification — even when they have law degrees.

              This article was originally published at The New American.