The Constitution and Democratic Insurgency

Aziz Rana—

One of today’s most urgent questions is how to combine an analysis of capitalism with an analysis of democracy.  The rolling socio-economic crises of the last decade, highlighted by the global financial meltdown, have laid bare the extent to which American society is marked by fundamental and irreconcilable conflicts between those enjoying economic power and those subject to the vagaries of the market.  At the same time, the constitutional system, plagued by legislative dysfunction and extreme counter-majoritarianism, is incapable of implementing popular policy—let alone resolving endemic collective problems.  American capitalism generates profound social and material dispossession, yet American democracy either facilitates these developments or seems helpless to address them.  Why is this the case? And to what extent is the existing constitutional order—its basic ideological and institutional terms—at least partly to blame?

Since the forging of Cold War liberalism in the mid-twentieth century, elites have offered the same, familiar account—in both electoral politics and in the study of constitutional law—of the relationship between the constitutional order and the economy. The prevailing theory is that the structures of legal-political decision-making do not favor particular social groups. Instead, through an intricate system of checks and balances—overseen by a Supreme Court enjoying powers of judicial review—the constitutional process produces essentially just outcomes while ensuring that no single political or social actor wields overwhelming authority.  This structure of constraint substantively pushes decisions away from the extremes of fascism and communism and toward a moderate middle ground of ameliorative reform and steady collective improvement.

Although some may be suspicious of the Whiggish story of progress, a bedrock assumption underlying this account has been widely held—even among left-liberal circles.  This is the idea that the constitutional structure and its discursive traditions remain essentially agnostic as to existing distributional battles.  They can be used productively to pursue virtually any end—up to and including socialism.  As the New Deal victories seemed to confirm, constitutional process and language carry no essential theory of political economy.  To the extent that legal-political outcomes have remained in line with a vision of market capitalism and a limited welfare state, this is simply the product of popular will: the complex balance of views expressed across the constitutional system.

But this account ignores a fundamental critique of the constitutional order, one leveled by labor and black radicalism in the first four decades of the twentieth century before Cold War ideas took such an extreme hold. For those activists, the history of sustained racial, indigenous, gender, and class subordination made clear that the country was not then and had never truly been democratic.  Rather, the constitutional order systematically operated to expand the strength of a racial and economic minority.

It did so in two key ways: First, the politics of constitutional veneration created a climate in which the marginalized were required to pledge faith to the idea of a class-and-race harmonious “we the people”—while, in point of fact, fellow nationals were the primary sources of their oppression.  The document, as a symbol of republican self-government, perversely compromised the ability of Americans to appreciate the extent to which their society failed to fulfill its purported ends.  Activists of this era believed that the only way to confront sustained socio-economic inequality was through a politics of opposition, which rejected comprehensively class and racial deference.  And they saw the effort to build such an oppositional political culture as   undermined by the dominant narratives of American exceptionalism and constitutional perfection.

Second, the problem with the existing constitutional order was not only a matter of symbols and political praxis.  To the extent that the marginalized had power within the political system to press for emancipatory changes, it was through sheer numbers and the promise of the vote. But despite the country’s purported commitment to universal suffrage, it denied the vote to oppressed populations: from colonized peoples in the territories, to women and African Americans.  Even when the vote did materialize, it was cabined by a system of state representation that shaped federalism, the Senate, the Electoral College, and the federal bench in ways that dramatically over-represented specific racial, geographical, and cultural pockets. And the issues did not stop there. The constitutional system’s endless veto points, managed by an unelected, life-tenured federal judiciary, made it nearly impossible for the poor to use elections to better their lot.  To make matters worse, business elites employed just these veto points to wield outsized power at virtually every level of government, which they exercised to defeat social programs and to criminalize organizing and protest.

The argument of radical activists, from Crystal Eastman and Norman Thomas to W.E.B. Du Bois and Harry Haywood, was that the constitutional system was premised far more on minority rule than on mass democracy and so buttressed the very hierarchies of the racial and economic order.  In response, they improvised democratic reforms that would provide poor and marginalized groups genuine power. And they understood their reforms, both to economy and to state (from securing collective bargaining and the right to strike to abolishing the Senate, eliminating the states, and actually universalizing voting rights) as democratizing a society that, despite the rosy rhetoric, was not in fact organized on principles of equal and effective freedom.

For decades, Cold War liberalism—and the elite compact around it—has papered over the cleavages that gave rise to these critiques.  But in a sense, today the country finds itself facing the same set of basic social conflicts, armed with the same limited legal-political arrangements.  Just as then, these arrangements allow a minority to exercise disproportionate power, further entrenching an economic system riddled with racial and class hierarchies.  And moreover, these arrangements are sustained through a public culture that persistently reproduces nationalist tropes about shared community, despite the fact of irreducible and conflicting interests.

Under these circumstances, it is especially important for those invested in critical projects to work through how the structure of the state and the prevailing norms and institutions of American constitutionalism are actually inextricably bound to the reproduction of a specific brand of racial capitalism.  Politically, it also means pursuing a radical agenda on behalf of democracy—including everything from its representative procedures in constitutional government to the mass instruments for its exercise, like the strike, in the context of economic and social conflict.  If the present moment, not unlike earlier ones, is marked by deep anti-democratic weaknesses in the economic and constitutional order, the only response is to elaborate fully the substance of a genuine democracy.

Aziz Rana is a professor of law at Cornell Law School.