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Who Owns the Constitution?

In their early-twentieth-century heyday, American socialists advanced a distinctive vision of constitutional interpretation that centered popular mass politics — not judges and lawyers. As we face our own crisis of constitutionalism today, we should look back to that vision.

With respect to the Supreme Court, the focus must be on a broader reform agenda that reimagines both the Court and asks who owns the Constitution. (Unsplash)

Talk of “packing the Court” is in the air. Of course, this is not the first time that Americans have contemplated expanding the number of justices on the Supreme Court. Republicans during the Civil War added a tenth justice. FDR famously sought to protect New Deal legislation by adding to up to six new justices to the Court in 1937.

But for a long tradition of American radicals, especially those associated with the early twentieth-century Socialist Party, simply packing the court or adding new justices woefully misunderstood the nature of the problem. As the Socialist Norman Thomas wrote of union leadership’s willingness in the 1930s to limit their structural critiques largely to a matter of Supreme Court size, “It is amazing . . . to find organized Labor, with its traditional distrust of government by courts, waxing so enthusiastic for fifteen judges instead of nine.”

Instead, Thomas and others characterized the central problem as the extent to which control over the US constitution was largely removed from mass politics. Federal judges, and the party and corporate bosses that they were responsive to, decided which topics to debate and which arguments were worthy of consideration.

Moreover, significant elements of the constitutional order were essentially beyond popular revision. For Socialists, this meant that the larger goal had to be the creation of a legal-political system genuinely consistent with mass democracy. And, as part of that project, ordinary people had to wrest both ownership of the constitution and of what counted as worthy of constitutional debate from the courts.

Movement activists thus believed that the only solution was a transformation in the basic design of American institutions, including the Supreme Court and the federal judiciary. A century later, the country remains mired in the same undemocratic predicament and requires much the same radical reform vision and agenda.

A Sui Generis Constitution

We can see the need for dramatic change by simply turning to the present political moment, one that exposes enduring structural flaws in our constitutional system.

Senate Republicans are currently poised to confirm Trump’s third nominee to the Supreme Court. This is despite the fact that Trump lost the popular vote in 2016 and the 2018 election was itself, as a matter of the actual vote tally, close to a landslide victory for the opposing party. To put this development in context, all Democratic presidents since the 1960s together have had four justices successfully confirmed to the Court. Democrats have also won six of the last seven popular votes in presidential elections, and yet because of the vagaries of the Electoral College and the extreme overrepresentation of rural and white communities in the Senate, the federal judiciary is likely to be dominated for a generation or more by far-right ideologues.

These are individuals whose views on race, voter suppression, the economy, reproductive rights, and a host of key political and cultural matters have been broadly rejected by the public.

But even in the supposed best of times, when the Supreme Court’s composition largely follows the dominant national mood, constitutional politics in the US remains notoriously undemocratic. There are only nine Supreme Court justices and they are empowered to strike down government legislation. Justices serve for as long as they desire (hence the disastrous effects of Ginsburg’s death), with no term limits or mandatory retirement age.

Most countries have significantly larger constitutional courts (thirty-four members in India, for instance) as well as a combination of term limits (usually nine to fifteen years) and age-based retirements. The US is practically alone in rejecting all of these constraints on judicial authority, a fact further underscored by the lack of any ethical oversight of the Supreme Court itself.

To highlight the unique and extreme power of this body, the primary way that people across the world tend to exercise constitutional voice is through mass movements for formal amendment, often entailing national referenda. But such efforts are essentially foreclosed here.

Scholars widely describe the United States as the country with the single most difficult amendment process globally, given the need for two-thirds support in both houses of Congress and then three-fourths of the states to ratify. The result is that amendments are practically a dead letter.

Constitutional change in this country is driven instead by judicial interpretation — whatever a tiny coterie of lifetime judges can be convinced to pursue or accept. Their inclinations shape US constitutional politics through what cases they choose to hear and what textual analysis they credit (however ill-conceived).

All of this has a profoundly corrosive effect on collective life. In particular, it means that what counts as a constitutional matter and what occurs in the Supreme Court are effectively one and the same.

Today, just as a century ago, structural features of the constitutional order facilitate the entrenchment of minority rule by a corporate and racially homogenous political coalition, which actively uses the tools embedded in that order to manipulate the vote and maintain generational control. But the fact that constitutional change occurs more or less exclusively on terms set by judges means that the public has essentially handed over authority regarding how to think and talk about the constitution to the courts. And the reduction of constitutional politics to the narrow terms of what judges do and think almost definitionally excludes fundamental questions about the organization of this legal-political order.

And this exclusion is, in truth, not simply an oversight. All of the judges, whether far-right or centrist, are members of a particular governing elite, which by training and professional acculturation is deeply invested in the existing terms of the constitutional state, despite that state’s evident and destructive flaws.

These judges are not unbiased actors, but embodiments of an American establishment — institutional players who have drunk deeply from the well of US exceptionalism and whose activity is to impose the state’s will. At a time of rolling national crises and thorough institutional dysfunction, we should not grant them near-total reform authority or virtually exclusive power to define what counts as constitutional.

And yet, our political culture hands the reins of constitutional authorship, memory, and knowledge to them — and to a small class of legal professionals who revere and venerate them — all to the exclusion of nearly everyone else.

Leaving the Courtroom

For Socialists in the early twentieth century, this was precisely why the problem of the Supreme Court could only be addressed by locating reforms to the bench within a broader agenda that placed working people and their interests at the center of constitutional politics.

One could not separate the limitations of the federal bench from those of the rest of the constitutional order. Unless the whole constitutional system were democratized, and effective constitutional ownership handed over to the poor and working class, court reforms would inevitably return power back to a “judicial oligarchy.”

The 1912 Socialist platform, formulated at the peak of the party’s popularity, perhaps best captured their constellation of demands, linking changes to courts to democratizing measures across the constitutional system. These included calls for “proportional representation, nationally as well as locally,” “the abolition of the Senate and of the veto power of the President,” “the election of the President and Vice-President by direct vote,” “the abolition of the power usurped by the Supreme Court of the United States to pass upon the constitutionality of . . . legislation enacted by Congress,” term limits for all judges, “national laws to be repealed only by act of Congress or by a referendum vote of the whole people,” “abolition of the present restrictions upon the amendment of the constitution, so that instrument may be amenable by a majority of the votes in a majority of the States,” “the granting of the right to suffrage in the District of Columbia with representation in Congress and a democratic form of municipal government,” “unrestricted and equal suffrage for men and women,” and finally “the calling of a convention for the revision of the constitution of the United States.”

For our present-day purposes, not every one of these demands (or the version offered in 1912) would be a perfect fit, although many remain essential: eliminating the Senate, the Electoral College, and the system of state-based representation, and broadly expanding voting rights. Most importantly, the overall vision — of a participatory mass democracy — provides us with a key roadmap. Socialists believed that not only did the text need to be overhauled but at a deeper level, the way that Americans imagined what defined a constitution and thus what constitutional politics looked like had to shift.

The constitution’s eighteenth-century framers, with their profound suspicion of democracy and their commitment to rule by socio-economic elites, conceived of a relatively short document. It was meant to lay out universal principles, largely preserving property rights, and was institutionally insulated from ordinary people through endless veto points, like the Senate and the federal courts.

Socialists, by contrast, embraced a very different theory of design. For them, one key constitutional feature should be a much easier amendment process — something that became a persistent national platform demand for the first third of the twentieth century. This change was meant to collapse the chasm between higher and ordinary lawmaking, making constitutional and legislative practice far more equivalent.

Armed with a flexible amendment structure, the people could intervene through mass movements in constitutional politics, negotiating and re-negotiating the terms of the existing order in response to genuine popular needs. The text could then include detailed policy goals, real alterations to the governing structure, and extensive positive economic and social rights provisions.

Indeed, simplifying the amendment process was tied directly to changes in the court system. Over the decades, Socialists proposed a series of collective reforms to the Supreme Court that, if implemented, would have effectively brought the US federal judiciary closer to the model that emerged across the world in the mid- to late-twentieth century. They pressed for term limits, retirement ages, dramatic expansions to the number of judges on the Supreme Court (deemphasizing the power of any one judge), and either the total elimination of judicial review (as in the 1912 platform) or massive shifts in how review operated. Such changes would require supermajorities for decisions and/or give Congress the power to override court rulings through legislative action.

Taken together, these measures would have entailed the abolition of the Supreme Court as we know it.

But critically, for Socialists, unless the amendment process was far easier, court reform alone could not succeed. The country needed to have avenues for constitutional change that did not rest on litigation, a tool that reinforced the power of a professional legal elite and that was deeply ill-suited to engaging with large-scale structural questions about the organization of state and economy. Without institutional mechanisms for a truly popular constitutional politics, struggle would inevitably find itself back in the courts — reconstructing new forms of judicial dominance over time.

Holding Them to Their Own Rules

This desire to take constitutional politics out of the courts emerged in part from a basic Socialist account of rights in a democratic system. In recent decades, the deeply contingent circumstances that led to Brown v. Board of Education and other Warren Court decisions have fed beliefs both that the courts protect the rights of the marginalized and that the primary dangers come from below, from a tyranny of the majority. Socialists absolutely opposed such views.

As the great feminist, anti-war activist, and labor radical Crystal Eastman noted, it was overwhelmingly the empowered few, members of a “ruling class,” that systematically trampled on the rights of those oppressed. And they often employed the institutions of the state — from the presidency to the federal courts — to do their bidding.

As she concluded exactly a century ago about violent anti-labor crackdowns and Jim Crow white supremacy, in terms that sound eerily familiar to our own moment, “the ruling class . . . has proved that any inconvenient provision of the constitution can be set aside, and has taken a long bold step toward openly disenfranchising all who advocate fundamental changes in the form of government.”

This does not mean that Socialists like Eastman believed that movement activists should simply ignore the judiciary or the debates over legal interpretation occurring within it. The courts were a powerful site of decision-making, and so radical contestation had to take place even within them. Activists hoped that occasional courtroom victories could provide working class and poor clients a reprieve from the everyday violence that they experienced — offering real and immediate improvements for the weakest in society.

For example, leaders in the Industrial Workers of the World (IWW) repeatedly invoked the First Amendment and what they believed were their members’ protected free speech rights. They saw these rights as foundational to any legitimate legal order — arising not out of a special American experience but from universal principles of democratic government — and thus to be defended, by whatever means available, even with reference to a fatally flawed text.

As a result, when faced with intense government crackdowns, they repeatedly asserted the constitutionality of their practices like union organizing, disseminating literature, picketing, boycotting, and engaging in sympathy or even general strikes — both inside and outside the courts.

At the same time, movement leaders were clear-headed about the likelihood of judicial defeat. Still, they hoped that such legal strategies could undermine the dominant assumptions about legality and illegality, in which wealthy elites presented mass organizing as violent and dangerous and claimed for themselves the mantle of “law and order.” Radicals sought to underscore how those with power openly disregarded, as Eastman suggested, their own rules — operating lawlessly, even under the terms established by the courts. In this way, court fights could expose to the wider public the fundamental inconsistency between judicial lip-service to rights and the practical reality of state and corporate abuse.

But even if Socialists believed that the courts could not be ignored, they comprehensively rejected the aspirational project — so familiar in recent decades — of converting elite judges as the pathway to meaningful change.

Unlike today’s center-left, such radicals were deeply suspicious of whether the judiciary, when push came to shove, would actually preserve the rights of the marginalized. The long history of racial, gender, and class subordination — all entrenched by Supreme Court decisions — drove the point home and highlighted the prevailing need for a basic structural re-founding.

Despite the rare judicial successes, radicals saw sustained mobilization and action through legislation and constitutional amendment as the best long-term means of ensuring a system of real protections. Unless rights were popular rights — the product of mass commitment codified in law — they would inevitably be uprooted by racial and economic elites taking advantage of the existing instruments of minority rule.

In other words, instead of thinking of rights and democracy as competing forces, the Socialist imagination emphasized the way in which the latter was an essential precondition for the former.

Beyond Court Packing

Where does this leave us today? We live under a profoundly undemocratic constitutional order, whose fundamental flaws have become impossible to hide. And yet the path to another legal-political system, one that can go hand in hand with a truly democratic economy and a rights-respecting society, is largely blocked.

This was also the dilemma facing Socialist reformers a hundred years ago. Indeed, they focused so intently on constitutional demands because they believed that socialism and mass democracy were two sides of the same coin — they could only be achieved together.

For our purposes, it is worth emphasizing that Socialists not only espoused a utopian horizon for the future but also had a pragmatic politics for confronting their historical moment. They recognized that a new constitutional convention (even if worth defending in theory) was unlikely and perhaps even practically counterproductive, given the prevailing distribution of power and resources. They thus rejected fetishizing any one specific silver bullet. Instead, they organized their efforts around reforms that, if implemented, could disrupt the existing relations of authority and begin to improvise a new society out of the old.

The goal of all their proposals, as the 1912 party platform declared, was “to strengthen the working class in its fight for the realization of its ultimate aim, the co-operative commonwealth, and to increase its power against capitalist oppression.” They thus imagined a variety of levers — pragmatic reforms with revolutionary implications — that if enacted would dramatically expand the bargaining power and social position of working people in their contests with corporate employers and their state backers.

They understood each reform as a small-scale mechanism for making the daily reproduction of social hierarchy increasingly more difficult. Even if the long-term goal might have been a thoroughgoing constitutional rupture, in the immediate and medium term, they were most interested in locating specific alterations to the existing institutional landscape that would disrupt the status quo. They sought to shift power across both state and economy — including through a simplified amendment process, abolition of the Senate, various court reforms, constitutional protections for the right to strike (including practices like secondary boycotts), the eight-hour day, unionization, maximum hour laws, and many others. If achieved, each change would enhance the capacity of working people to pursue their shared interests.

Similarly, today we should assess reform ideas through the lens of bargaining power, considering what each proposal would mean for the everyday institutional authority of oppressed communities. The primary emphasis should be on experimenting creatively with many potential alterations — across the legal-political and economic landscape — and on assessing whether those reforms would alter existing distributions of power.

With respect to the Supreme Court, the focus therefore must be on a broader reform agenda that reimagines the Court (its size, composition, and authority) but also asks, in a serious way, who owns the Constitution. Addressing that last, decisive question is ultimately critical to finding any path of out of the collective American fog.