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EDUARDO PENALVER: Welcome and good afternoon. My name is Eduardo Penalver, I'm the Allan R. Tessler Dean at Cornell Law School. It's my great pleasure today to introduce the speaker, Professor Aziz Rana, who's an associate professor at the law school. He's been a professor at the law school since 2009.
Prior to joining our faculty, Aziz was the Oscar M. Ruebhausen Fellow of Law at Yale Law school. He received his bachelor's degree from Harvard College in 2000, his JD from Yale Law School in 2006, and his Ph.D. in Political Science from Harvard in 2007, where his dissertation was awarded the University's Charles Sumner prize.
Aziz's research and teaching centers on American constitutional law and political theory with a particular interest in the intersection of citizenship with topics in national security and immigration. His book, Two Faces of American Freedom, was published by Harvard University Press in 2010.
It situates the American experience within the global history of colonialism, emphasizing how notions of republicanism and expansion have shaped US law and politics since the founding. In addition to his scholarly writing, he's written essays and op-eds for venues such as The New York Times, The Nation, and Salon.com.
His current book project directly relates to the topic today. It explores the modern rise of constitutional veneration in the 20th century, especially against the backdrop of the emergence of the United States as a global power. And it explores how veneration has shaped the boundaries of our contemporary popular politics.
When I was asked to suggest law school speakers for a series of talks in relation to the [INAUDIBLE] centennial, I think of these for a number of reasons. First, as the faculty member who was most recently recommended for tenure by the faculty of the law school-- still pending before the provost, but soon to be finalized-- he perfectly represents what the law school's present strength and its potential to lead Cornell into the second 150 years.
If you've not interacted with Aziz before, you'll find that he's a dynamic young scholar. And with people like Aziz coming up through the ranks, Cornell Law School is very well positioned to flourish into Cornell's second 150 years.
I also picked Aziz because he represents the law school's commitment to the interdisciplinary study of law. I could have picked many people to represent this role, because we actually are very deeply stacked with people who have a foot in each discipline, in disciplines that range across the campus.
In fact, just yesterday, Valerie Hans, one of our professors at the law school, gave a very nice talk up in Kennedy Hall, along with Professor John Blume and members of the human development faculty about people who have been wrongly convicted. And she's herself a researcher in psychology, and so also represents this strong strain of interdisciplinary legal scholarship at Cornell Law School.
And finally, I chose Aziz because his topic is particularly timely. Cornell shares its sesquicentennial with the 13th Amendment to the US Constitution, which abolished slavery throughout the United States. For many people, the US Constitution is not a document worthy of veneration until it cleansed itself of the original sin of slavery through the enactment and the ratification of the 13th Amendment and the Civil War amendments that followed it.
And so Aziz's talk reminds us of the moral complexity of our constitutional tradition, and challenges us to question the sanctity of this document at the heart of our legal and political system. So without further eating into his already short time, please join me in welcoming Professor Aziz Rana.
[APPLAUSE]
AZIZ RANA: Can everybody hear me? So first, I'd like to say thank you to Eduardo for that incredibly generous introduction, and to all of the folks that have been involved in putting on the events this weekend. It's really an honor to be here as an invited speaker. My time at Cornell so far has been amazing. And so this is just a great opportunity and a way to participate in a special moment for our university's history.
I'm probably going to talk for about 40 minutes. 35, 40 minutes. And I'll leave some time at the end for questions. As Eduardo suggested, the focus of my discussion is going to be the rise of what I call constitutional veneration in the 20th century. And by this I mean the fact that today-- really, across the political spectrum from right to left, there is near unanimous support for the Constitution.
And it's interesting, as just a contemporary phenomenon, for a couple of reasons. First, a lot of people refer to the present moment-- let's say, the period from the 1970s to today-- as one of heightened polarization. This is the time when Democrats and Republicans can't get along, and they're continuously fighting about basic policy issues.
So it's noteworthy that at just the moment where you have this feature of polarization, you have near general agreement that the Constitution is, effectively, a good thing. And this is also noteworthy because this agreement has real, substantive bite. In other words, it's not just that the Constitution is a good thing as a kind of empty document that could mean whatever it is that people want it to mean.
Yes, it's absolutely true that right and left disagree about a lot. They disagree about how to interpret the text of the Constitution. For example, whether or not things like abortion should be constitutionally protected, or how we should imagine gun rights. But this conflict or disagreement actually takes place within a fair amount of consensus.
It's what the great Cornell historian Michael Kammen used to refer to as conflict within consensus. And by the way, as a plug for Kammen's book, I recommend anybody that's interested in this topic should read his book, A Machine That Would Go Of Itself, which was published nearly 30 years ago, but still really stands as the kind of classic text about the Constitution in American public culture.
What is this agreement? I'll present a story about how the Constitution is connected to national identity, and it's one that, regardless of your own political views, you'll find familiar. And the story goes like this. The Constitution is the concrete embodiment of the values expressed in the Declaration of Independence.
The Declaration of Independence suggests a commitment to universal equality as a self-evident truth, and to a set of rights, provisions that everybody should enjoy the benefits of. And it's the Constitution that makes these values real. And American history is effectively a story, a kind of unfolding project of fulfilling, a set of values that are already there at the present, of redeeming a national project.
This is an argument that historians most associate with Abraham Lincoln. It was at the heart of his speeches for his second inaugural, and especially at Gettysburg. And it's a way that Americans today commonly think about the value of the Constitution. And it's precisely this that's shared, let's say, by Occupy Wall Street protesters on the left and Tea Party activists on the right, whatever it is that they disagree about.
Now, I should note that the fact that there is near unanimous support for the Constitution, for this idea of what the Constitution means, doesn't mean that there aren't academic critics or lone skeptics. In fact, in the era, really, since the financial crisis in 2008, there's been a burgeoning dissident tradition of scholarship in the legal academy arguing that the constitutional system is fundamentally broken. You might have read articles about this in The New Yorker and other places.
And a lot of this focus has been on the idea that the Constitution establishes a set of counter-majoritarian institutions or divided structures of power, for example, between the Senate and the House, that make it very difficult to get particular kinds of policies placed.
But what's noteworthy even about this disagreement is that all of these figures still hold on to the promises expressed in the Preamble of the Constitution that they see as proof of the Declaration's value. And effectively, a commitment to that Constitution that emerged after the Civil War, a vision of it, noted as sort of fundamentally grounded in the 13th Amendment's ban on slavery and the 14th Amendment's commitment to equal protection.
But also, whatever their critiques, those critiques aren't expressed. They might be expressed by academics, but they're not expressed by elected politicians. They don't have a mass social base. It's hard to imagine a judge that wants to be on the Supreme Court saying, you know, I think the Constitution needs to be fundamentally rewritten. Or somebody that's running for President saying, "You know, the Preamble is good, but let's scrap the rest of the document." These are not recipes for success.
Part of why they aren't recipes for success is not just that people share a story about the Constitution, but they also share a related story about what belief in this vision of national identity and constitutional meaning has produced, especially over the course of the 20th century. And this is the idea that the text, its key elements like the Bill of Rights, the First Amendment, the Equal Protection Clause, and the culture of rights respect around the text has slowly and steadily transformed American public life.
It's created a public life more committed to principles of equality, to principles of rights promotion that limit the most extreme infringements of state power, and perhaps above all, to a culture of self-reflection and self-critique in which individuals, through the language of constitutionalism, can engage in a back and forth about what national projects should be.
Sometimes this is through the courts, and so the courts, as a close institution that reflects and embodies the Constitution for many citizens, sometimes the courts are at the heart of these improvements. And we can think of key cases like Brown v. Board of Education, which banned formal segregation in public schools and said that the idea of separate but equal was fundamentally unequal, as embodying a story of how the Constitution slowly transforms.
But oftentimes, even when the courts get it wrong, the sense is that, well, the Constitution is more than just a court based document of decision making. It's also our national language of agreement and disagreement. It's our language of conflict within consensus that's helped transform how we think of the national project, and in particular, has embedded a specific set of creedal values.
I just want to note upfront-- and Eduardo hinted at this-- this was not how Americans have always thought of the story of the Constitution or what role the Constitution plays in public life. In the era when Lincoln became a major Republican Party politician, there was a very different way of thinking of the Constitution that was the dominant story of the Constitution, especially in the North.
And it was the story articulated by another man named Daniel Webster, who was a Massachusetts senator. And for Webster, what the Constitution was was a document of compromise. The 1787 compact of compromise.
And in particular, it was a compromise between North and South over the question of slavery to ensure that these distinct sections could still participate in a national project of economic and territorial expansion.
That should be, for us today, an unfamiliar and morally problematic story of the Constitution's meaning. If anything, it's the opposite of what we want to venerate. The Constitution is not valuable because it allowed slavery to persist so we can participate in a project of manifest destiny. If anything, it's overcoming precisely these values that define the Constitution for us.
Noting that, I think, is worthwhile, because it highlights how the story of the rise of constitutional support and the particular Constitution that we are committed to now is really a relatively recent story. It's one that, I'm going to argue, began at the start of the 20th century with the US's emergence onto the global stage. And really wasn't consolidated in any meaningful way until the 1970s and the fallout of student and civil rights protests.
And it emerged through a set of sustained political struggles over the better part of a century. And the fact that this is a relatively recent development also tells us a couple other things. It raises questions.
One, how did this story emerge? How did the history unfold so that we now agree both with the Constitution's basic legitimacy and how it connects to national identity? And then, of course, a second related question-- which is the extensible title of the talk that all of you guys have come to hear, so hopefully this isn't just purely a bait and switch. Should we love the Constitution?
In other words, the kind of narrative about the Constitution and its meaning, is it worth defending? And what does the history tell us about whether or not it's worth defending?
For the rest of my time, what I'm going to do is quickly go through three different issues. One, how did people think about the Constitution before the emergence of this way of imagining it as a dominant form? So what was the Constitution like before consensus and what role did it play in public life?
Two, how did constitutional consensus take root? And then the third is, well, what are the consequences? How should we think of these developments for contemporary politics today?
As a bit of a preview-- and maybe this is because I'm a law professor, or a professor, generally-- the answer is it's complicated. There are clearly some incredibly positive developments because of the transformations of the meaning of the Constitution and collective support for it. So it's facilitated important reform efforts.
But it's also had its downside in limiting other kinds of reform possibilities. We'll work through both of those.
What did America look like before constitutional consensus? In the late 19th century and the early 20th century, this might be surprising, but the Constitution was a site of real disillusionment in public life. And disillusionment that went surprisingly deep. This had to do with, let's say, two different big issues. The first, the Civil War and the fallout over the Civil War. And the second, problems of industrialization.
This disillusionment meant that three elements of what we might think of as constitutional agreement today, all three of those elements would have been deeply contested. One, does the Constitution as a structure, as a design mechanism for reaching governmental decisions, does it produce good outcomes? Contested. Is the Constitution actually consistent with egalitarian values and should values of equality, universal rights protections, should these be protected and preserved? That's also contested. And then the third, to be a patriot, do you have to believe in the Constitution? Is patriotism loyalty, something that is necessarily connected to constitutional commitment? Also contested.
To get a sense of the post Civil War context, and perhaps why we have these disagreements, let's go back to a moment of another anniversary celebration.
1887, 100 year anniversary of the Constitutional Convention in Philadelphia. There's a private organization, largely of legal notables, lawyers, judges, that have organized a centennial celebration committee. And they want to get enthusiasm nationwide for the Constitution. They go to Congress. They say Congress, give us some money to celebrate the Constitution, the document that you serve at the behest of, that everyone has to take an oath to. They can't get money from Congress.
[LAUGHTER]
They try to convince a poet to serve as the official poet of the celebration. They can't get anybody to serve as the poet. They try to get an orator to be the official orator. Most of the orators decline. They finally are able to strongarm an associate Supreme Court Justice named Miller to serve.
They invite a number of people from business, politics, the military, to attend a set of events at Independence Hall. Most politely decline. EL Godkin, writing for The New Republic-- a kind of iconoclastic Republican figure, but hardly a rabble rouser-- says, well, it's kind of obvious why you can't get support.
We just had a Civil War that was one of the most brutal in human history. And the Civil War is proof, in some deep way, of the failure of the Constitution. The Constitution was supposed to do two things. Solve the problem of the relationship between the states and federal government and address the question of slavery.
And on both grounds, it was unable to come to grips with social problems. And this sense of uncertainty in the wake of the Civil War spanned a number of different competing constituencies. Radical Republicans, who'd been trained in a kind of abolitionist politics represented by people like William Lloyd Garrison, had long believed that the Constitution was a compact withheld because of its provision and its acceptance, in various ways, of slave holding.
And the Reconstruction and post-Reconstruction period saw the nature of divided power, the reality of the Senate, as all amplifying the power of the South and making it very difficult to impose the kinds of social changes they might have wanted.
African-Americans. African-Americans were torn. You had certain African-American constituencies, represented by people like Frederick Douglass, that articulated really extreme forms of the Lincolnian narrative. Were the ones, in many ways, in American life in 19th century, that were telling a story of multi-racial democracy with a Constitution at the center. And particularly, the reconstruction amendments as completing, perfecting the founding document.
But there are a lot of other African-Americans, especially in the rural countryside, where sharecropping, crop lien forms of production, plantation ownership going back to white land holders, that were deeply disillusioned as well by what had happened post Civil War. By a story of the move from bondage to freedom and back again to bondage.
And in fact, one might say that the most powerful form of social movement politics among Southern African-Americans in the late 19th century was emigrationism. Almost 100,000 African-Americans signed up to leave either for places like Kansas, because of Kansas' abolitionist history, or abroad to Haiti and elsewhere.
Very few of them ended up being able to migrate. But that had to do with, again, the kind of power that white property owners had over the economy in the South. But even Southerners, many Southern whites that were still angered by the defeat during the Civil War were disappointed in the text because they saw the Constitution as, if anything, a Northern document and an embodiment of their own defeat.
So almost regardless of your perspective, there is uncertainty about the text. And that only is accentuated by the fact that the late 19th century was increasingly a period of intense confrontations between business and labor over fundamental questions about the economy, in which a number of different labor activists, middle class reformers, small farmers and populace, wondered whether or not the structure, the institutional design of the Constitution, was up to the challenges and problems of the 20th century.
They saw it as, again, a counter-majoritarian text that made it hard to get past specific kinds of democratic, read, economic policy reforms. And so wondered whether or not, even if it might have been appropriate in 1787, it was still appropriate in 1900. This speaks to a couple different things.
One, it tells us that in many ways, from the perspective of 1900, it's not necessarily clear that patriotism required constitutional fidelity. Of the four presidential candidates in 1912, three of them were on record voicing strong opposition to the text. Woodrow Wilson, who won the presidency, himself had written a book saying that we should move toward a parliamentary system.
He contemplated nominating somebody to the Supreme Court-- think a little bit about my framing of the contemporary moment of nominating a judge to the Supreme Court-- he's seriously contemplating some nominating somebody to the Supreme Court named Walter Clark, who was the chief judge of the North Carolina Supreme Court and had argued for a Constitutional Convention.
This was something that was conceivable at that moment. In a sense, in 1900, it was perfectly reasonable to imagine a future in which you'd have a new constitution written over the next couple decades. 31 or 32 states by 1913 had actually petitioned Congress for a second Constitutional Convention.
Second, the idea of a Lincolnian commitment to universal racial equality was also really a marginal view by the time we get to the early 1900s. That if anything, the dominant position was that the US should be thought of as a kind of white republic, like Australia or New Zealand at the time.
And Teddy Roosevelt, for example, when Russia lost to Japan in the War of 1905, sends part of the Pacific fleet on a tour to Australia and New Zealand, just to underscore the fact that, like the US, these two are white men's countries. So a very different way of thinking of the US. For Roosevelt, it's more conceivable to imagine a new constitution that one day, 100 years from the time that he's writing, the Constitution would be venerated but as the basis of a multi-racial democracy. A wild idea.
Then the third point is, notice that all of these ways of thinking about the Constitution are largely pitched as issues of institutional design. The Constitution is one among many ways to organize political power. And that's the focus of the debate. Should we have a parliamentary system, should we have judicial review, what role should the courts play?
The conversation is less about national identity, sort of the symbol of the nation. And even less about what we think of today as the core rights commitments, free speech, equal protection. How does this change?
This really begins to change-- and this is, in some ways, the most controversial part of the research that I'm engaged in-- when the US starts to emerge onto the global stage as a real power. And this is following the Spanish-American War in the first two decades of the 20th century, and especially in the context of World War I.
This period of emergence is noteworthy because of two big questions that those that want to defend a much more assertive role for the US abroad face. One question is internal. The longstanding view in American life had been that the best way to protect Republican institutions at home is to avoid entanglements with European power politics.
This is Hamilton's famous speech that he writes for Washington when Washington leaves office in 1796. A version of isolationism is viewed as connected to national values. How can you justify a more powerful American presence? And then internationally, the issue is that in many ways, the US is emerging during the period in which empire, the classic European empires, are starting to come to an end.
There's a brutal insurgency in the Philippines, and what that insurgency tells a lot of policymakers is that there are just not that many good colonies left. And there are real problems with attempting to hold pieces of land. There's a famous book that's written at this time by an Australian journalist that Teddy Roosevelt says is one of the most important of the second half of the 19th century. and it's called-- his name is Pearson and it's called National Life and Character, a Forecast. And what Pearson says is that the era of absolute-- let's say-- European imperial power is over. This is an era in which, he argues, people in Asia and Africa are going to be much more self-assertive.
He forecasts. One of his forecasts is that South Africa will not forever be ruled by a small minority of whites. That Africans eventually are going to take over South Africa. And so Europeans are going to have to think again about the kind of power that they exercise. And all of these debates start to shape how various policy makers imagine the meaning of the American project.
A key person here is somebody-- University of Rochester just a couple hours away. His name is David Jayne Hill. So David Jayne Hill was also a significant Republican Party figure. He was the ambassador to Germany, he was involved in pro-war activism around World War I. But he writes a book in the lead up to World War I called Americanism, What Is It. And he said something that's kind of remarkable for the time. To be an American is not about race, it's not about religion or ethnicity, it's about shared commitment to a set of values. And those values are best expressed in the text of the Constitution.
The argument is that it's the Constitution that gives a positive principle to national power abroad and to national practices at home. And it's the Constitution that also tells us why, precisely, the US is exceptional.
Today there is a lot of discussion about American exceptionalism. But 100 years ago-- actually, first, the term American exceptionalism wasn't a common term. It only started to take hold in the 20s, and it was actually introduced by members of the Communist Party that didn't know why there wasn't socialism in the US. That's actually how the first invocations of exceptionalism take place.
The idea 100 years ago was that the US was really not that different than Anglo-American societies. Again, England, but Australia, New Zealand. And so maybe we learn from these other states, maybe they have good ideas, maybe we have good ideas. But we should be engaged in a kind of exchange.
What Hill starts to argue, and others around him, is that, no. The Constitution was tangible proof that the principles of the Enlightenment first came down to Earth in the US, and especially a principle of self rule. That justifies the institutional arrangements at home, but also gives the US a special project abroad. European powers might be motivated by a principle of empire and imperialism, but the US, when it acts abroad, is motivated by a principle of constitutionalism.
And for this reason, what we promote is self rule and democratic self-governance in a way that makes our interests consistent in various ways with the interests of other countries. And we can think about the pluses and minuses of this framing in a bit.
But notice what this tells us is it's a justification against the backdrop of insurgencies in the Philippines, more assertiveness by countries like Japan or areas like parts of China. It's a justification for American leadership, and for why that leadership can rightly go hand in hand with forms of intervention, or what we might think of as more aggressive tactics.
And during World War I, this approach finally gets a mass base. And it gets a mass base, this defense of the Constitution, because for a large number of Americans, there's still really intense opposition in specific sectors. But for a growing number of Americans, particularly Protestant Americans and those that either come from rural or middle class backgrounds, the labor strife, war abroad, the possibility of many revolutions, like the Russian Revolution, sweeping across other parts of Europe and perhaps even the US, all highlight how maybe the Constitution embodies for them a particular kind of golden age.
And you have, for the first time, mass celebrations of the Constitution in a way that had never previously existed. There's a relationship between government actors-- so Woodrow Wilson-- the very person that writes that we should rewrite the Constitution-- in 1917, supervises government sponsored efforts in connection with business and military elites through organizations like the National Security League, which had nearly 100,000 members in 1916, for the first National Constitution Day celebrations.
And then you have, along with National Constitution Day celebrations, efforts to teach as a required course in public schools, constitution and constitutional support. You have oratorical competitions in high schools where upwards of 1 and 1/2 million high school kids participate in writing speeches about the Constitution during the 20s.
And a lot of this focus, interestingly, is on re-inscribing what the Constitution means. The Constitution is less about institutional design, the structure of the text, and it's much more about the Constitution as a symbol of national identity, as an expression of a set of values that should be defended, and defended particularly through the existing institutions of the state.
Now, in the teens and '20s, and even '30s, this support still is largely a conservative political phenomenon.
But two big things happen. One, the New Deal. The New Deal reshapes how many progressive reformers, including in the legal academy view, the flexibility or inflexibility of the Constitution. There are discussions about perhaps the need for another convention, fundamental changes or revisions. But the court ultimately accedes to New Deal policies, and the kinds of programmatic efforts of the New Deal are found to be compatible with the existing constitutional order. And this changes the kind of view or approach to the Constitution. Perhaps, for many reformers, we can do business with this text. It doesn't need to be written.
But even more importantly, by the late '30s, the early 1940s, the US finds itself in a new international confrontation. And this time, with Nazi Germany and with the rise of what was viewed as totalitarianism.
You have a variety of different societies that are new threats, that are understood as quintessentially closed societies. They're that principle of empire and imperialism only extended to the nth degree. Where, even if there are constitutions, like the Soviet Union's constitution, these are paper tigers or paper documents.
And the focus on the Constitution becomes a way of describing, well, what distinguishes a closed society from the open society of the US. And in 1941, FDR decides, well, it's really important to highlight the Bill of Rights and the First Amendment as part of this pluralist open society tradition. And so you have an extensive Bill of Rights celebrations in a way that's fundamentally different than what we might have seen in 1887 around the text of the Constitution.
By the end of the war Gunnar Myrdal, a Swedish sociologist, in American Dilemma, comes to articulate in his kind of defining classic book about race relations in the US, what the Constitution means for postwar America. Will mean for postwar America, since it's written in '44.
And it's the thought that the Constitution highlights how the US is a fundamentally liberal society, even though marked by the sin of slavery, that's committed to liberal rights protections in a way that highlights that, for Myrdal, the US is the world in miniature. And that the interests of the world are equivalent to the interests of the US.
And in the post-war period, this facilitates a growing civil rights movement that makes arguments about reform in constitutional terms that emphasize a project of inclusion.
Every community, regardless of their background, should enjoy the benefits of formal legal equality. And it's this story of inclusion that's become such a central one to a number of different contesting social movements, really since the '50s and the '60s.
And you can plug in just about any, from the women's movement to LGBT politics in the present.
So let me end with three reflections about the consequences of the rise of this story. First, before, in the sense, I get to the consequences, I want to note just how important the transformation of constitutional meaning over the course of the 20th century has been to changes we hold central to the things that we're proud of in American life.
We're also celebrating the 50th anniversary of Selma and the Voting Rights Act this year. And in many ways, it's this constitutional shift and the reform initiatives facilitated by it that have been the bedrock of positive social changes.
But at the same time, there are perhaps three notes of concern. One is, the story of civil liberties and civil libertarian protections and its relationship to the Constitution is much more paradoxical then we might initially think, especially by reference to this history. We tend to think of the Constitution as playing the role of checking bad security practices, making sure that the excesses of a security state are circumscribed. And it's certainly done that.
The language of civil liberties that's emerged around the Bill of Rights, that part of the story of transformed constitutional meaning, has made the very worst excesses of the past less possible. Like Japanese internment during World War II. But at the same time, it's worthwhile to recognize that it's precisely the language of the Constitution that's played a central role in justifying American power.
We can have different views about the value of having a much more assertive international presence, but it's no doubt that to the extent that there is an argument that the US needs to be present globally, and especially the threats virtually anywhere, threats domestically, that this facilitates enhanced executive power.
And so in this way, it's perhaps not a coincidence that the very era of constitutional veneration, the '70s to the present, is also the era that increased numbers of individuals were worried about an imperial presidency. These might be related because of the ways in which constitutionalism and the discourse around constitutionalism facilitates a particular form of American power.
The second point is even about race. That, notice the creedal story has a tendency to be self-congratulatory. One way of telling this creedal story is that the arc of history-- this is Martin Luther King's wonderful phrase-- bends towards justice. But if you believe in that too deeply, there's a way in which you can say, hey, we've achieved so much. There's formal equality today. That we live in a kind of post-racial America that doesn't necessarily require a sustained interrogation with the circumstances of the present.
And that self congratulation can cut against thinking seriously about the persistent forms of inequality on various kinds of grounds that continue to exist. So does constitutional veneration undermine our ability to think critically about the president in ways that would actually, let's say, redeem the promise?
And then the third point has to do with those isolated, lone skeptics in the academy. In a way, the reason why they haven't been able to get purchase is because they're not talking about the same constitution that most politicians and citizens are describing.
Most politicians and citizens, again, are describing a constitution that's about a symbol, about a rights document, about a story of national identity. And these academics are talking about a constitution that's institutional design. The relatively fixed elements of the text, like a divide between Senate and House, the role that the courts play, the particular structure of the executive.
And it's this institutional design that one might well wonder whether or not in the present is part of the difficulty that Americans have in confronting important social problems. In other words, that we can wonder if there is a political system that has emerged that is not, regardless of your political views, equipped to actually address, in a systematic way, the problems that we have.
And if we have an institutional design that's not fully capable of addressing social problems, and we have a public culture of veneration around that institutional design on grounds that don't take seriously those embedded issues, that seems to be a fraught problem for the present.
And maybe that's where I'll leave us, which is a temperate set of reflections about the value of this constitutional story in producing some of the most important and beneficial changes in the 20th century, but a real open query about whether or not the problems of the 21st century can be achieved without some critical distance both from the story of constitutional meaning and from the institutions designed. So I'll stop there and leave a bit of time for Q&A.
[APPLAUSE]
Glenn?
GLENN: Yes, thank you for just a splendid [INAUDIBLE] It's nice for an old guy like me to see what [INAUDIBLE] Cornell is in. If I may, I'd like to just make a couple of observations to see if they fit with your analysis or in some way are [INAUDIBLE] First observation [INAUDIBLE] Michael Kammen's book, I understand that he suggests more continuity than you're suggesting.
He suggests that the Constitution is venerated, but [INAUDIBLE] understood. That people are ignorant [INAUDIBLE] mark that generation to find that that ignorance has always opened the door for public figures to use the Constitution like a drunk uses a lamppost, more for support than illumination. And that therefore, what we have is what we've always had, a unitarian [INAUDIBLE] the executive for which constitution warrant is claimed.
The commerce laws cited by opponents and proponents of the Affordable Care Act, the Second Amendment being cited by people who are for or against expanded use of guns. So does that interpretation-- is that consistent with what you're telling us this afternoon?
AZIZ RANA: Yeah, I guess two thoughts. It's consistent in one way, which is that I think that Kammen is absolutely right about how, particularly, let's say, in the second half of the 20th century, that there's a kind of steady invocation of the Constitution to serve virtually any purpose.
And one of my favorite bits of evidence for this that he gives in the book-- and again, I should say that Michael was a really-- for me when I first came here to Cornell, and also when I began to develop this project. That he gave extensive feedback on pieces that I wrote, and I think his legacy is a really important one to this institution.
But one of my favorite bits of evidence that he marshals in the book is he looks at-- the book was published in '86, '87. And he looks at some of the polling data around the bicentennial that The Times engaged in about, how much do people really know about the text.
And one of the bits of polling data had to do with, here are quotes. And tell me where this quote is. See if you can locate the quote. Not telling people in advance that this is about the Constitution. And one of the quotes was from each according to his abilities, to each according to his needs.
[LAUGHTER]
So some of those of you here that took Intro to Political Theory or a class like that when you were here at Cornell, that's from the Communist Manifesto by Karl Marx. 60% said that was in the Constitution.
[LAUGHTER]
So that tells us something about the degree to which, interestingly, veneration is disconnected from actual textual knowledge. And to me, this is important for a couple reasons. One, the reason that Kammen notes, which is the ease with which the Constitution can serve originally any kind of political purpose.
But also, maybe perhaps a limitation on that. The way in which the Constitution's value for many Americans is really less as the instrument of a lawyer, the kind of law that I teach in Constitutional Law to first year students, and more about, again, what it means as a story about American life. It's that preamble, that notion that the Constitution stands for a particular kind of creedal story of national purpose that's redeemed over time.
The way that we would disagree, and maybe it's a small disagreement, is that Michael and I had a bit of a historical disagreement about when the Constitution started to have this function, where it was generally agreed to as basically legitimate, and then people exclusively make arguments within it. I want to say, actually, that's relatively recent.
There have been periods of greater and less veneration. So the antebellum period was one of more veneration, but still, importantly, there were segments of society that were suspicious of the text. Not just radical abolitionists, but folks that participated in various rural uprisings. And it was also an era, frankly, when the Constitution wasn't that important. So this is perhaps controversial.
But if you are a person living in a town in 1830s America, local politics. Most decisions are going to be made in your local court house or your local legislative entity. They're not really going to be made by the national government and the Constitution's associated with the national government. So disagreements about the Constitution outside of the frame about slavery are really kind of less relevant for your daily life.
Then I'd say from the post-civil war period up until, really, the '30s, there is intense tension and opposition. And that tension and opposition persists in all sorts of surprising ways, even through the late '60s and early '70s. One thing that I found in looking at polling data that might be a surprise is that the period since '36 where polls say that there were more folks that thought the Constitution should be changed, fundamentally changed, than should be maintained, the period where you see a spike is late 1945.
And that might be a surprise. But the reason is not-- if you think a little bit about it, the reason sort of makes sense. It's a period right after the war where you have individuals talking about maybe World Federation, and internationalism through the UN as a way of avoiding the problems of World War II. And you also have a very powerful New Deal base that also imagines forms of social democracy, for example, as perhaps a better way of organizing the economy. And that might require institutional changes. Somebody like Henry Wallace is a popular politician.
So all of these speak to breaks, or ruptures. And that doesn't even include, let's say, white supremacists, particularly in the South, that might have invoked the Constitution. But really, their constitution of a white republic is not the one that we valorize today, even if they called it constitutional commitment. That's outside of our frame. I feel like we're almost out. Go ahead.
PASTOR MICHAEL-VINCENT CREA: Dr. [INAUDIBLE] thank you very much. Pastor Michael-Vincent Crea, OWLS 1977, Catholic U, '87, and my own human rights ministry since 1990. In 1968, four months after Dr. King was assassinated, I went from the 26 counties of Ireland into the occupied counties. We're still waiting to get the British out of our backyard.
Out of 10,000 Catholics, only eight could vote where my grandparents lived. What you describe, and Brown v. Board of Education, I think, attested to, is the congenital defect of the birth of this nation. Because we've always prioritized property above people. I live with disabilities. I only became visible in 1990.
Half of our country and half of this room, maybe, women, only became visible in 1920. Africans, [INAUDIBLE] African men only became visible in 1865 to 1870. And this construct, instead of social contract-- because white does not exist. It's a construct. it's not a contract. But we still have an economic entity where I can go into court in 15 days with a bad tenant and protect my property, or protect the lease, in 15 days time. Or I can get a motor vehicle in 15 days time.
But we tell women, or Hillary Clinton, because of the way they look or they have a baby, they can get fired. And business doesn't stop as usual. Or I love somebody because I'm LGBT. My point is, we need a vehicle of veracity, of the truth that we hold so self-evident, that all are created equal. We've never had justice in this entity, economic entity, to provide human rights being protected, defended, and empowering us.
Could you comment on that? Because I'm from the same Staten Island precinct where Eric Garner was choked. And we get a false sense of security with cameras. I had a 9 millimeter gun to my head after a bathroom visit was speaking about this 17 years ago. Time has come, we need a human rights board.
AZIZ RANA: I guess what I would say is that there are two ways of thinking about the Constitution relationship to the problems that you pose. And part of this has to do with the fact that the Constitution really is pretty flexible in the way that Glenn was describing. That it can be used to serve a number of different competing ends.
And so you can tell the story of the 20th century as one in which-- and this is how a number of law professors tell this story-- one in which a document that maybe initially was framed to serve property interest or to protect slavery, has been fundamentally transformed as a tool that is itself a very powerful reform instrument. It's been through the language of constitutionalism that we have practices of inclusion. It's through the language of constitutionalism that New Deal policies, particularly around the welfare state, were defended.
And in many ways the contemporary debates, for example, about health care and the legacies of the New Deal, are debates in which you have lawyers arguing that in point of fact, a kind of conservative retrenchment against these policies is inconsistent with constitutional principles that have been defended for the better part of a century.
And then on the other hand, there is another debate or position that argues that, well, we need to have greater recognition of perhaps fundamental differences, conflicts of interests between haves and have nots understood in many different terms. And that the story of constitutional faith, which is a kind of story of American nationalism, doesn't give us enough tools to talk about problems of economic structure, to talk about the problems of rights.
Some of this has to do with the nature of the Constitution itself. That it's very different than the kinds of constitutions that have become more popular over the last few decades. Unlike the constitutions in places like South Africa, or Brazil, or India, there are no explicit positive rights provisions.
It's very, very difficult formally to amend. Its the hardest constitution to amend. It establishes modes of decision making that make passing policies that really are backed only by numbers, rather than economic influence or corporate power, hard to get through Congress and other political organs.
I guess where I would leave you, rather than foreclosing the debate, is to say, this is a conversation that we should have. Is engaging in constitutional critique throwing the baby out with the bathwater? Are there ways that we can have a more pragmatic relationship to our institutions and our traditions that allow us to think critically about questions of structure? And what might be lost if we go back to a world in which we're contesting, again, basic questions of national identity? Perhaps that's something that we're uncomfortable with.
But all of these, frankly, are open debates. And I'd say they're the debates that the country will have to have at the beginning of the 21st century if it's going to come to grips with the problems we face today, rather than continue to pat ourselves on the back for the achievements of 50 years ago. So I'll stop there.
[APPLAUSE]
Aziz Rana, associate professor of law, explores how Americans over the course of the twentieth century came to venerate the Federal Constitution as well as what today's climate of near unanimous support means for various reform agendas. Part of of Cornell's sesquicentennial celebration, April 24-27, 2015.
