Chronicle of Higher Education Op-Ed: Law Professors’ Supreme Squabble, by Noah Feldman (Harvard):
Courting Catastrophe: Radical Legal Academics Have Turned on the Constitution. They May Regret.
Every scholar — maybe every person — should have an intellectual opposite number: someone you agree with about the most basic facts but who nevertheless interprets those facts so radically differently that you end up disagreeing about almost everything. Within the field of U.S. constitutional history, my opposite number is Aziz Rana [Boston College], who this past spring released his second tome, an 800-page history-cum-polemic entitled The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them. Covering roughly 1887 to 1980, the book’s target is a form of constitutional discourse that Rana calls “creedal constitutionalism” and associates with President Barack Obama’s oft-repeated suggestion that the Constitution “had at its very core the ideal of equal citizenship under the law” and “promised people liberty and justice and a union that could be and should be perfected over time.”
Rana makes no bones about his condemnation of Obama-style constitutional discourse, with its “belief in the national narrative of unfolding equality and liberty.” This belief rests, he says, on “three ideological pillars: an anti-totalitarian account of individual liberty in market capitalism; embrace of American checks and balances, with the Supreme Court at the forefront; and a commitment to U.S. global leadership and primacy.” This, Rana suggests, is what Obama “defends as the essence of American liberal nationalism.”
Rana treats Obama’s attractive version of liberal constitutional discourse as though it were a naïve account of our constitutional history, rather than a carefully calibrated, self-conscious effort to reclaim the Constitution as a basis for moderate, progressive liberal egalitarianism. “The call to remain true to [James] Madison,” Rana suggests, is a kind of benighted ancestor worship, one that ironically “amounts to an invitation to hold firm to the very arrangements that have facilitated [an] authoritarian brand of politics that someone like Obama condemns as un-American.” Even the musical Hamilton, so obviously a witting rewriting of history, comes in for criticism as “mythmaking and hagiography.”
Rana tells a different story. He sets out to show that the Constitution was perfectly capable of functioning as a tool for settler colonialism and imperialism, and that there were always alternative versions of constitutional critique, including socialist, antiracist, and anti-colonial visions. There was, he argues, never a genuine national consensus about any aspect of our constitutional document or practices. And the period in which the United States began to export a version of American constitutionalism and constitutional values abroad was simultaneously “filled with gross U.S. violations of those very values.”
It’s not an exaggeration to say that my professional and academic careers to date exemplify a version of the ideology Rana comes to debunk. I teach and write about constitutional law and constitutional history. I inherited the authorship of a widely used constitutional-law casebook whose origins can be traced back to 1937. I served as a constitutional adviser to the U.S. occupation forces in Iraq, helping to structure the preliminary document that would eventually evolve into the Iraqi constitution. I even wrote a long biography of Madison. In short, I represent everything for which Rana has an unaffected scorn. …
Within the legal academy, skepticism of the constitutional tradition’s worth tends to ebb and flow based on scholars’ assessment of the virtues of the institutional actors holding constitutional power at the time. Today, with the Supreme Court controlled by conservatives, many critics on the left are prepared to encourage legislative assaults on the institution, fueled by the argument that the Constitution is more a function of politics than law. Thus, for example, the law professors Samuel Moyn, of Yale Law School, and Nikolas Bowie, of Harvard Law School, both testified before President Joe Biden’s Commission on the Supreme Court that there should be more, not less, political control over the Supreme Court, an argument against judicial independence that was favored by hardline conservatives from the era of the Warren Court through, at least, the Reagan years. (I testified on the old liberal side, emphasizing the evolutionary role of the court and the absence of realistic alternatives.)
Yet although today’s left legal academics gleefully criticize constitutionalism for hiding politics behind the veil of liberal law, few are prepared to reject the whole undertaking of having a constitution — or of trying to use the Constitution for progress. Before the commission, Moyn and Bowie both maintained that it was constitutionally permissible to constrain the court, paying lip service at least to the institutional curbs imposed by the Constitution as law. Rather than proposing the more radical solution of getting rid of the Constitution altogether, both favor a more democratic Constitution as a means to social change. …
There is, in the end, no reason to treat the Constitution with blind veneration. There is reason, however, to ask whether the idea that the Constitution has failed us is likely to make us better or worse off as a people. Preserving constitutional tradition through updating and improvement is rarely revolutionary. But constitutional tradition opens the possibility of holding together a fractious and fractured polity and finding enough common ground for the United States to continue to exist. That seems to me very much better than the alternative.
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