By ROBERT L. TSAI
Review of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, by Aziz Rana
Chicago: University of Chicago Press, 2024
Early in Aziz Rana’s epic new book, The Constitutional Bind, readers encounter Frederick Douglass, who escaped bondage and became one of the fiercest critics of the United States as a slaveholding republic. Before the Civil War, Douglass often presented “a redemptive reading of the Constitution” that called for abolition of slavery. Yet Douglass’s statements after the War deserve even more attention, according to Rana, for Douglass favored dealing with the “inherent weakness of our government” and ridding the constitutional system of “alien elements … antagonistic of republicanism declared by the fathers” (70).
From that moment on, American constitutionalism would be characterized by competing discursive strategies that cut across different issues and even divided fellow travelers: on the one hand, a tendency to cast fundamental law in abstract, restorative terms to create space for incremental change; and on the other, a blistering critique that presents the original Constitution in damning terms. This duality is found not only within Douglass’s record of advocacy, but also among others who opposed slavery, and this intra-abolitionist debate turned out to be merely the opening act of a multi-generational drama.
Due to its length and richness, The Constitutional Bind could be considered several books in one. It is a socialist critique of American political development that highlights the tradeoffs from incremental rather than transformational progress. It is also a partial intellectual history of radical and alternative constitutional theories marginalized by the set of ideas that came to rule. Finally, the book serves as an urgent plea for fellow citizens to give up the mesmerizing, yet frustratingly confining rhetoric of twentieth-century liberal constitutionalism.
Given Rana’s central objective of investigating the rise of the “creedal” approach to American constitutionalism, I believe it most fruitful to assess The Constitutional Bind as building a layered critique of a society’s civic culture, i.e., a set of beliefs concerning, attitudes towards, and ways of talking about the state’s basic law (which he repeatedly refers to as the “1787 Constitution”). Our attitudes about the original constitution have stifled a people’s imagination and helped make most of its features untouchable. Much of this formal law—which long ago established an enormously difficult process for amending the nation’s basic charter, a Senate that permitted even the states with the smallest populations to frustrate legislation desired by a strong majority of Americans, and a Court that has grown into a potent national policymaker in its own right—either suffocates or coopts liberatory movements while making it nearly impossible for ordinary people to countermand the priorities of elites. This basic structure has endured, Rana contends, whether those elites have included the Slave-holding planter class or corporations hellbent on maximizing profit on the backs of workers here and abroad.
Above all else, Rana seeks to hold up a mirror to American society so that academics and citizens alike can finally recognize that they/we have all played a part in reifying the Constitution and thereby narrowing the range of political possibilities. Though there is more in the book than a single review can do justice, what follows is a treatment of Rana’s volume in this light. Rediscovering the radical tradition of American constitutionalism—complete with systemic critiques of the original constitution, including how mainstream constitutionalism has insulated markets from political accountability and facilitated the domination of non-white populations at home and abroad—requires combing through the writings and activism of black intellectuals, committed socialists, decolonial theorists, and even the occasional liberal. Many such thinkers fluctuated between openly acknowledging the deep flaws of an 18th century constitution and a desire to achieve some measure of social and legal change in their lifetime. The result is a thrilling, iconoclastic synthesis of constitutionally-inflected debates of the past and the recovery of lines of argument that have long been relegated to the margins.
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Rana doesn’t spend time delving deeply into the Founding era or Reconstruction, for what is more important to him is how subsequent political actors understood those historical moments in later periods to justify or resist American influence-building. Nor does he aim to present a comprehensive account of Socialist thought (in fact, 19th century America was a hotbed of socialist experimentation, colorful and charismatic figures, and dissident communities—some of whom believed they could reject the 1787 Constitution by organizing around different precepts, albeit on a smaller scale). Instead, Rana builds on Progressive, Socialist, and Black critiques of the U.S. Constitution for being “deeply undemocratic” (x), creating so many “veto points” that preserve order rather than achieving justice—features that even the greatest Reconstruction statesmen did not dismantle and subsequent movements have proved unable to dislodge.
Rana inclines toward a Beardian reading of the Founding, though he reminds us that Beard should not be remembered solely for arguing that the Framers were driven by counterrevolutionary economic goals. Even if an economically deterministic reading of the Founding is overly simplistic, Beard (and other structural liberals, socialists, and internationalists) should still be lauded for correctly diagnosing the Constitution’s systemic design, intentionally created to diffuse energy for large-scale transformations and exploited today to “allow corporate goals to quietly dictate policy.” Given these structural faults, Rana wonders how veneration of such an undemocratic text “became such a naturalized, unremarked-upon feature of collective life” (2).
The answers he provides are culled from what occurred during big moments in the twentieth century: two global wars and economic collapse; the ongoing push by egalitarian movements to expand the rights of black citizens and women; independence movements created by Cubans, Puerto Ricans and colonized peoples; an imperative on the part of elites to consolidate territorial gains and expand American influence into other countries’ spheres of influence as part of the Cold War struggle against the Soviet Union. Along the way, elaborating themes first articulated in his earlier book, The Two Faces of American Freedom, Rana reintroduces readers to critics of the 1787 Constitution, from Eugene Debs and Crystal Eastman to W.E.B. DuBois and Afeni Shakur.
Rana’s target is “creedal constitutionalism,” described as the “fusing of constitutional devotion with the idea of the country as an unfolding project in equal liberty” (11). While there have been different strands of this approach, he argues that the “most important variant” in the country’s political development emerged during the twentieth century, which in turn encompasses three “ideological pillars”: an anti-totalitarian principle that encompasses individual liberty and market capitalism, a conviction that “checks and balances” stymies unwanted political extremes, and a belief that American global leadership is a positive (and perhaps eternal) end (11). These ideological features of modern civic culture have not only stalled large-scale reform in the United States but also offered a veneer of legitimacy to war-making and rationalized interference in other nations’ interior affairs.
The Constitutional Bind is organized chronologically as it decenters the role of lawyers, judges, and legal systems in order to focus the political actors who have even more power to persuade the citizenry that an archaic constitution must be overcome. In the first part of the book, Rana examines the anti-slavery origins of the creedal approach, along with competitors that emphasized the flaws of original design. He also explores Gilded Age debates, including Populist criticism of Marbury v. Madison, which established judicial review, as a “gross usurpation” and allowed judges to rule as an “imperium in imperio” (98). State after state restructured their state constitutions to allow recall of judges and ensure that the people retained ultimate authority over fundamental matters of social policy.
The Progressive era was awash in structural critiques. For instance, Herbert Croly of the New Republic insisted that the constitutional order had morphed into a “conspiracy” of the “educated and wealthy classes” against working people. Radical feminists like Emma Goldman and Crystal Eastman similarly worried that reformers were pursuing a crabbed conception of “independence and emancipation.” By contrast, Woodrow Wilson represented the epitome of creedal constitutionalism, especially in his responses to independence efforts by Cubans, Filipinos, and Puerto Ricans.
In the second part of the book, Rana revisits the New Deal and presents dissenters who contend that the transformation did not go far enough, as well as liberals who once offered vivid systemic criticisms of the 1787 legal order, but later muted their criticisms as New Deal policies became more popular and the FDR administration began to pile up successes. He also explores how memories of global conflict served to narrow the contours of debate over the basic law—centering matters of national security and the hunt for heretics and apostates within the national security state. At the same time, black radicalism, which retained the memory of the Constitution’s defects, acquired an increasingly international and decolonial dimension.
The third part conveys Rana’s criticisms of American efforts to export its own constitutional model worldwide and domestic efforts to promote reverence for the U.S. Constitution through civic education and commemorations. It also demonstrates how elites converted McCarthyism into an anti-populist lesson and the study of constitutional law into court-centered questions about adjudicatory practices. Journalists such as Anthony Lewis, celebrated author of Gideon’s Trumpet, helped elevate the vision of the Supreme Court as America’s chief civic educator, thereby cementing the institution’s place in perpetuating narrow solutions and enduring myths about liberal constitutionalism.
Finally, part four focuses roughly on the late 1960s through the 80’s, exploring radical black critiques of the Civil Rights movement, the efforts of the Poor People’s Campaign, and the conservative resurgence. Rana calls this darkly “the rise of Originalist America,” an experience of “political closure” in which most liberals and conservatives have foresworn open class conflict and have accepted “a set of narrowed boundaries” for debate about the prevailing legal order (614).
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Statesmen have long warned that a state’s relationship with the rest of the world is connected to the internal health of the polity. Machiavelli insisted that a stable republic was possible only with “good laws and good arms.” Unlike most constitutional theorists whose nationalist assumptions lead them to put on blinders, Rana agrees that American constitutional practice has both outward-facing and inward-facing dimensions, and that how national leaders talk about the world beyond the nation-state and what a community believes about itself have a bearing on the material existence of other peoples. But Rana is not interested in whether such assertions of spreading liberty and equality around the world have, all things considered, benefited other communities more than they have hurt them. Rather, he is concerned with how such rhetorical claims have been deployed to foreclose a reckoning with the nation’s settler origins and to whitewash imperial projects in a decolonial age. For instance, whereas other historians have emphasized how activists and policymakers at home exploited the ascendance of rights-based civic culture to advance individual rights domestically, Rana draws attention to how FDR’s “Four Freedoms,” though it laudably deemphasized judicial solutions, nevertheless did most of its work by projecting imperial power abroad. That liberal constitutional template would be taken up with increased vigor as the American Century proceeded.
But if, as Rana himself acknowledges, the creedal approach has made a cumbersome 18th century constitution workable despite its flaws, and even lubricated the occasional transformation like the New Deal and Civil Rights settlements, then what exactly is the problem besides that it does not go as far as radicals would have preferred? At times, it seems that Rana’s concern with redemptive politics is its plasticity. For instance, he notes that creedalism was capacious enough under Woodrow Wilson to encompass not only soaring ideals of economic and political liberty, but also white supremacy and an aggressive demand for assimilation as the condition for citizenship.
At other times, Rana’s objection to creedalism is its apparent mystifying effect. Creedalism offers a triumphal narrative about American progress and legal perfectionism that obscures the truth about “the concrete historical record” (424): the settler drive to conquer people and territory and remake defeated people and ways of life into the image of the conquerers; a tendency toward racial domination; an imperative to force other nations to open their markets to American products. For instance, Rana contends that during the Cold War, proponents of creedal constitutionalism “refashioned the relationship of socialism to the American constitutional experience” even as it “obscured the anti-democratic…role played by past governing elites” (424).
An inclination to compartmentalize is a natural human response to trauma so one is able to carry on; perhaps a similar dynamic is to be expected from the polity as a whole so self-governance can continue. But are regular people mystified by creedal arguments in the sense that they are being bamboozled? It is true that a number of national policies on the economy or social rights simply do not reflect where a consensus lies; but there are also many national policies that more or less reflect the electorate’s rational, contradictory beliefs about complex questions. Where there are disjunctions between consistent majoritarian preferences and policies, the tricky empirical question is whether civic mythology or rational self-interest is to blame.
When it comes to constitutional rules, the progressive, the socialist, and the social conservative, committed to thicker notion of state power and citizenship, will always believe there are too many veto points; the libertarian and anarchist, who struggle to reduce state power, will insist there are too few. The truth is that absent a major disruption of daily life that can allow a broad-based reform coalition to be built, a shift in the basic character of a legal order is usually out of reach. Even when excellent ideas are plentiful, a groundswell of unhappiness is a precondition for transformative politics of any sort. It used to be that the existential threat from invasion would be enough to unsettle political foundations, but the natural barriers enjoyed by the U.S. after territorial expansion and the altered nature of war since the Cold War has left fewer economic or political upheavals that would shake the people’s faith in the basic contours of the legal order.
A realist accepts that structural legal conditions (and how people feel about those conditions) play a role in shaping how political resources are invested, but that they are not the only reasons why citizens might not wish to swallow stronger medicine that might be good for them. From this realist perspective, one might say that there are two potential versions of Rana’s causal claim about the role that civic culture has played in impeding constitutional reform. The stronger thesis, such as when he argues that the New Deal “circumscribed the possibilities for the future” (309), is that the very pursuit of creedal approaches blocks elaboration or consideration of other, superior possibilities. To prove this claim would take a deeper dive into truly liminal moments to assess whether, given then-existing political contingencies and prevailing arrangements, other choices were plausible. Rana’s account shows that even some influential policymakers, intellectuals, and activists retained structural perspectives. That more radical ideas did not catch fire among those in power does not seem to have prevented them from being elaborated, and at least in some circles, discussed at length.
The weaker version of the thesis posits that domestic successes achieved through resort to precept-based arguments about the Constitution sated some of the desire for change at every turn, and so the method siphoned away energy for maintaining a simmering discontent necessary for revolutionary change. There were fewer constituents for radical projects as mainstream actors and some radicals turned away from more ambitious projects when there had been material improvement in one’s lot, even if modest, or at least a noticeable change in political status for the better. Rana shows, for instance, that the NAACP’s membership increased dramatically as it embraced an anti-communist version of creedal constitutionalism and declined to support decolonial mobilizations. Rana’s account succeeds at this second version beautifully, showing that alternative visions of power and community in fact existed but were widely rejected. He also shows that in other places where it has been possible to elude American control and cultural domination, those alternative ideas have even been implemented.
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Another intriguing question raised by Rana’s lively, sprawling account is whether creedal and structural critiques of the status quo are inherently incompatible. DuBois, an academic and activist who appears throughout The Constitutional Bind, offered powerful structural critiques of Reconstruction, presenting that historical moment as the best opportunity to uproot settler infrastructure and realign power away from planter elites toward emancipated blacks and white laborers. DuBois also believed federalism entrenched a “rotten-borough system” (327). At the same time, he insisted that black people and Radical Republicans had already “formed a new United States on a basis broader then the old Constitution” but had not since honored that refounding, and he also supported the general thrust of the New Deal, even if he believed it should have gone further. Importantly, DuBois’s occasional appeal to respect some past constitutional achievements did not extinguish his radical outlook or turn him into a conventional liberal. As Rana discusses, DuBois helped oversee the NAACP’s appeal to the U.N., and that document rekindled arguments that the American political system allowed rulers to be selected through a “disenfranchised vote” that was “a danger not simply to the Negro” but also “to the nations of the world” (459).
The shifting positions taken by DuBois and others suggest that creedal and structural approaches to fundamental law might not be inherently incompatible ideologies as such, but instead orientations toward bodies of legal and political knowledge to be adopted situationally. Few true reformers who wish to have a meaningful impact are structuralists all of the time. By the same token, speaking in creedal terms does not require that one abandon radical beliefs or transformative goals. What matters is how appeals to certain beliefs about the Constitution are laced together, the ends pursued, and the forms of progress one is willing to accept.
From the strategic perspective (a factor that pure intellectual treatments typically underplay), conditions on the ground will usually play a decisive part in how political actors decide which approach is worth pursuing. Creedal arguments may have more bite in moments of retrenchment, when progressive change faces long odds and the priorities of harm-reduction may counsel in favor of incremental change while blocking worse forms of repression. When stories of corruption are widespread, as they were in the Gilded Age, or large-scale economic upheavals are taking place, as they were in the early twentieth century, it may be worth aggressively front-loading structural complaints and linking the people’s suffering to constitutional fixes.
If this realist observation is correct, Rana’s Part II may offer more lessons for today’s reform-minded readers than other chapters, because envisioning FDR’s New Deal as a project of restoration at a time of major economic dislocation allows us to appreciate that political actors deliberately bypassed even bigger reforms, such as redesigning the judiciary or altering Article V. This argument is worth considering even though it may be harder to envision significantly different design choices in 1787 that would have still led to successful ratification. Rana notes Robert LaFollette, who continued to denounce “judicial dictatorship” and proposed a constitutional amendment to permit Congress to override a Supreme Court ruling striking down federal legislation so judicial elites could not have the last word on matters of national importance. He also discusses a Socialist Party proposal for a constitutional amendment that would clarify congressional power over labor and codify socioeconomic rights.
Could FDR have captured the imagination of so many voters and continued to pile up electoral wins if he had adopted Garrisonian language that the original constitution was irredeemable or backed formal constitutional amendments and spent political capital on them? Likewise, would the Supreme Court still have adopted a more deferential posture if Roosevelt had spoken about the need to subvert or replace the 1787 legal order? The tantalizing question is whether FDR could have broadened the conversation by ratcheting up his political attacks on judicial review of the archaic silences in the 18th century document and triggered a more comprehensive formal restructuring of the legal order, even if doing so might have risked stalling policy progress or losing partisan control. That FDR opted not to do so teaches us to consider the partisan limits of any project of structural change spearheaded by a president.
While Rana criticizes creedal approaches for providing “ideological space for ethno-nationalist policies” and “bolster[ing] elitist suspicions of mass democracy,” structural criticisms by technocrats and utopians of all stripes, too, have been fused to policies that dominate or exclude. Some contemporary white nationalists and social conservatives, for instance, do not merely wish to venerate what was created in 1787 and keep it intact, but believe that more aggressive institutions and policies must be entrenched in a state’s basic law to realize their vision of the good life. Ultimately, if anti-domination is the objective, it may matter less whether one chooses to subscribe to one or the other approach and more important how contingent and systemic criticisms are laced together and whether they together produce constructive solutions that can spur further progress. An incomplete civic education and impoverished public discourse have almost certainly made it harder for citizens to detect surviving colonial infrastructure, but consumerist culture and the particular form of national party politics at key historical moments have arguably played more significant roles in defusing momentum for fundamental change.
Besides the New Deal, the 1960s stands out as another time when both external threats from nuclear annihilation and Soviet interference, along with domestic uprisings, suggest that a wider range of political formations may have been possible. According to the conventional narrative, the two-party system’s domestication of revolutionary egalitarian movements kept the American constitutional project on track; a backlash against urban unrest and Democratic policies ensued that put Republicans in power for decades. Rana argues that the Black Panthers’ project should be seen as a form of multi-racial, constitutional politics with an anti-colonial frame that profoundly rejected the 1787 Constitution.
Still, I wonder whether the dichotomy between creedal and structural approaches breaks down most visibly here. In an illuminating section, Rana shows how the Panthers carried copies of the Bill of the Bill of Rights while on patrol and invoked not just the Second Amendment, but also the Declaration of Independence to develop their theories of black self-defense and sovereignty. Like the Republic of New Afrika, participants in the Black Panthers’ people’s convention drew on decolonial ideas and political experiments from other parts of the world to imagine a different legal order than one built upon colonization and mass incarceration.
Rana regards both the Panthers and members of the RNA as non-creedal phenomena, despite their felt need to develop their belief systems in part by reference to the Founding and Reconstruction. Rana also says that while Martin Luther King Jr. rejected the black power movement’s fascination with armed struggle, his substantive vision eventually “transcended” creedalism by “evolving” into black internationalism (574-75). Yet the reality may be that King’s writings and speeches consistently contained both creedal elements expressing optimism in the continuation of the American experiment as well as pessimism about the domestic structural forces that produced the racism, materialism, and militarism he so roundly denounced.
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What, then, about the Supreme Court, that counter-majoritarian institution that has done so much during the last century to rekindle constitutional faith with decisions like Brown v. Board of Education, but also by taking a backseat to allow “meaningful twentieth century changes” (x) such as the New Deal and post-60s Civil Rights settlements? For Rana, Brown represents how little Americans are willing to accept for all their egalitarian pronouncements rather than a model of action to be emulated. Beyond a smattering of cases, Rana does not discuss major decisions by the Supreme Court. This is defensible, given his focus on the big picture. Even so, it’s fair to wonder how the Court that we have should behave within the unreformed system that exists. Surely the Court can make things far worse. At a minimum, it would seem consistent with Rana’s thesis that the justices avoid rendering decisions that interfere with large-scale mobilization on a national scale. They should also not go out of their way to excessively glorify court-centered visions of political liberty.
In the last part of The Constitutional Bind, Rana castigates originalism, the interpretive theory ascendant on the current Supreme Court. All six Republican-appointed justices are products of the so-called “Reagan Revolution”—itself steeped in a conservative creedal vision of American (and global) order. Rana does not grapple with originalism’s claim to a place at the table as a jurisprudential approach. He tells us that originalism merely involves “a compelling way for conservatives to question the transformations wrought by both feminists and Black freedom struggles while still operating within the general terms of creedal constitutionalism” (643).
What about abortion, an issue that continues to roil American politics? For decades, liberal practitioners of the creedal approach have argued that the open-textured provisions of the Constitution ought to be read to encompass the right to sexual autonomy; creedal opponents of the right, along with originalists, reject the move. Roe’s demise does indeed make it materially more difficult for women, especially impoverished women, to participate in the civic life of a community due to the realities of pregnancy and child-rearing. The originalism-justified demise of Roe also portends the possible jurisprudential unraveling of a key thread of creedal achievements aimed at creating a set of rights at the heart of equal citizenship and family formation. How far this unraveling goes, and whether it will invigorate political activism or merely deepen material inequality and create insurmountable obstacles to a more fulsome notion of equal justice remains unknown.
To complicate things further, if the average citizen’s attitude toward an ancient founding document should be kept in mind, then few things remind people of the need to amend the Constitution or revisit it wholesale more than a shocking ruling like Dobbs—earlier rulings that rejected subsidies for abortion had some, though limited, galvanizing effect. This suggests that, while opposed for their immediate effects, minimalist rulings on rights might be defended in part on the ground that in the long run they make it easier to mobilize the polity to fill the gap. After all, urging codification invites people to think about structural change, while accommodating widespread belief in the law’s primary goals of providing security and predictability.
A creedalist response to Dobbs, as Rana’s account suggests, involves doing what the party faithful have long been doing: work to elect Democratic presidents and elevate more liberal judges. But the structural critic will sense that the moment must be seized before discontent dissipates and work hard to persuade others that the Constitution desperately needs a facelift—whether that entails adding sex and gender protections, explicitly empowering Congress to legislate for the health and welfare of the people, or reducing the power of the Supreme Court over Americans’ lives.
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What would happen if we followed Rana? Once Americans are able to rid themselves of the tendency to see the Constitution reduced to judicial rulings, he believes that will put us on a better path toward “a new, more complete, and more complex national story,” the development of “a dynamic and coalitional mass movement,” and “genuine popular control over the memory, terms, and ambitions of constitutional politics” (37). In the conclusion, Rana reveals more of his commitments. He defends the mobilization of labor “in constitutional terms” so “working-class power at the point of production” can begin to match the outsized power of business elites (671). Consistent with his critique of labor’s troubled relationship with migrants, he advocates the labor movement putting immigration issues “front and center” (673). Rana presents an admirable dream of a more “democratic and non-imperial society” (686-87). How would we get there?
Readers may be surprised to learn that Rana opposes an Article V convention (676-78). This view places him in the same camp as liberals such as Russ Feingold and Peter Prindiville, who have co-authored a book with the creedalist title, The Constitution in Jeopardy. These authors, like Rana, acknowledge the severe shortcomings of the 1787 Constitution, but fear a runaway convention more than the potential that unruly convention politics could yield a genuine refounding—like what occurred at the Founding. Indeed, they spend a great deal of that book trying to convince voters to oppose structural reimagination. It’s possible their caution is warranted and that the existing rules advantage conservative elites or could be coopted by rightwing movements. But the rules can be changed mid-stream, as they have been by past generations of Americans, not to mention people in other countries.
Some radicals would understandably see this as a loss of nerve. It may well be that such caution underestimates the degree to which citizens could be persuaded to forge a new constitution that makes the national government an effective one for the new century, driven by a new mission and popular support—and no longer a vehicle with mismatched and recycled parts that lurches from one side of the road to the other.
Apart from how the citizenry might go from a position of apostasy to reimagination, Rana’s vision of mass politics unleashed raises the question of which is the end-goal: democratization of fundamental law, come what may in terms of actual policies preferred by the people unleashed, or the socialist objective of enduring working-class control of public policy. This has always been the latent tension in social democratic accounts of political life.
In The Constitutional Bind, a reader will not find a comprehensive defense of mass democracy in which social movements operate as the primary engine of lawmaking and memorymaking. Rather, the author takes for granted that a large, inclusive public can keep from fracturing and govern effectively over time. We also do not receive an answer to the question of how far the author is willing to go to ensure that the basic law remains in the hands of American workers. Is it enough for rigged constitutional rules to be swept aside, even if labor fails to persuade consistently through democratic means? Or should certain institutions be entrenched to ensure that the working class will always be able to shape public policy? Rana doesn’t tip his hand about these matters, nor does tell us whether a minimalist constitution, of the sort favored by Mark Tushnet, or the thicker experiments conducted in the Global South and elsewhere, are the way to go.
If I were to guess, Rana might say that such choices are for each people to make on fair terms (and not imposed by outsiders). At the same time, Rana’s fascinating and nuanced critique of American participation in the writing of Kenya’s constitution makes me wonder. He describes Thurgood Marshall, the architect of the creedal strategy that led to Brown, as willing to pay the price for increased influence within the new political-legal settlement. In Kenya, Marshall effectively does the work of elites to export the American model of written constitutionalism, replete with judicial review and protection of property rights. But some activists on the ground, notably Oginga Odinga, who played a key role in Kenyan independence, came to regret Marshall’s involvement because the property provisions of the 1963 Lancaster Constitution later interfered with the independence movement’s drive for reparations from colonization. In a stinging indictment, Rana writes: “Marshall essentially legitimated colonial theft” and “nullif[ied] the independence struggle” (517).
Of course, excruciating compromises are often made during a country’s refounding. South Africa’s post-Apartheid constitution, which constitutionalized universal suffrage and labor relations as rights, nevertheless protects individual property rights and makes both recognition of “injustices of our past” and “healing the divisions of the past” fundamental precepts. The fact that some regret making those hard choices does not prove the superiority (all things considered) or feasibility of other options. At all events, Rana juxtaposes Marshall with DuBois, who resisted the Cold War messaging that put the U.S. on the side of angels, losing influence even among black intellectuals and dying in a kind of self-imposed exile in Ghana. DuBois, who remained a consistent proponent of “black radical internationalism,” deserves our praise. But he also stands as a kind of lesson: radicals may not live to see the changes they are capable of imagining for the rest of us.
At the end of the day, Rana has performed vital work to recover sources of radical constitutionalism swept aside by the tide of political development and ignored by those who are deeply invested in court-centered visions of order. Whether anything could have turned out differently given the reality of the day is the historian’s task. For the theorist, it is more than enough to dust off forgotten visions of power and community.
Posted on 16 October 2024
ROBERT L. TSAI is Professor of Law and Harry Elwood Warren Memorial Scholar at Boston University School of Law. He is the author of Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All (W.W. Norton 2024); Practical Equality: Forging Justice in a Divided Nation (W.W. Norton 2019); America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard 2014); and Eloquence and Reason: Creating a First Amendment Culture (Yale 2008). For the 2024-25 academic year, he is a Laurance S. Rockefeller Fellow at Princeton University’s University Center for Human Values.
