Constitutional scholar Aziz Rana talked to The Ink. Rana is author of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (2024). You can subscribe to the Ink if you like this stuff — in fact, now's the time.
Rana says there were
"specific dynamics in the mid-20th century. From the New Deal to World War II, through the Cold War and decolonization, that created the conditions for political agreement rather than anything that's there in the text of the Constitution. And now all of that has gone away. I worry that liberals oftentimes invoke that broken set of agreements whenever you see even more brazen acts of misbehavior by either the Court or political actors like Trump. And I just don't know that that's going to work going forward."
That agreement "defined politics in the mid-20th century." It was a time when "there was some degree of center-right, center-left consensus around the terms of the institutions, how folks operated with respect to each other, which types of discretionary misbehavior were out of bounds, and which kinds of discretionary misbehavior would be papered over." But now, it has broken down. We have "nostalgia" for it, but that doesn't help. The breakdown explains why "we're in this moment."
Some liberals appeal to what the Constitution supposedly really says or should mean, at least on a symbolic level if not with any real-world political force that they could leverage to promote their ideas. Although "Constitutional veneration...can provide some constraints," in the long term it may be unhelpful, as it legitimizes the whole system that lets certain people get away with bad behavior.
More specifically:
"The problem, in my view, is that the long-term trajectory of American power and the centrality of the presidential office to the national security state and the national security apparatus have over the long term overwhelmed these proceduralist constraints such that the War Powers Resolution is deeply ineffective.
The courts overwhelmingly ended up deferring to presidential authority. And I'd say that the collapse of the Soviet Union was seen as a validation of not just the American Cold War project but specifically the belligerent, aggressive Reaganite approach to the Cold War. That was very closely tied to market fundamentalism, to a kind of belligerent posture towards the world, to unilateralism globally.
And all of this got built into the cultural politics of the country, and made it very, very difficult, in Congress and certainly in the courts, to constrain the presidency. And we saw this dynamic play out again in the War on Terror."
Sure, "use whatever constitutional devices that are available to try to hold Trump accountable," but recognize "why those devices fail time and time again."
With Republicans in control of the Supreme Court,
"the internal disagreements of the right — how much immunity is too much immunity, how much of the administrative state to gut, whether or not to completely get rid of the right to abortion or just to functionally get rid of it by systematically undermining the checks on laws that would constrain reproductive rights — that is the sum total of the legal universe. And that means that the rest of us are effectively now just subject to their internal disagreements."
Democrats and journalists still imagine an "ideological spectrum" that used to exist in the Supreme Court but no longer does. The justices will only agree to hear cases on things they care about ("affirmative action, abortion, Trump's immunity, the nature of the administrative state"), and they'll debate the answers from their own perspectives. Issues that matter to many Americans today — "the carceral state," "a fundamental right to education" — are never going to be taken up by the court.
We need "systematic changes to constitutional structure, including some very fundamental reforms to the structure of the Supreme Court itself." More justices on the court, term limits for them, and better procedures to amend the Constitution.
Rana's book:
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