The Return of Constitutional Politics

This article was previously published as part of The Reconstruction Papers. The entire book is available in print and as a PDF.

I. Constitutional law and its limits

Constitutional law has become the deadly enemy of clear political thinking in liberal constitutionalism. We are fighting today for constitutional politics.

To understand the difference between constitutional law and constitutional politics, consider two responses to the Montgomery Bus Boycott, which was 381 days of embodied First Amendment action involving boycotts (freedom of association), rallies (peaceful assembly), and speeches (free speech) at churches (free exercise of religion).

At the beginning of the boycott in 1955, a then-unknown minister by the name of Martin Luther King Jr. told a packed church, “We are here…because of our deep-seated belief that democracy transformed from thin paper to thick action is the greatest form of government on earth.”¹ That’s the voice of constitutional politics.

At the end of the boycott in 1956, Thurgood Marshall, the nationally known civil rights attorney, muttered, “All that walking for nothing. They might as well have waited for the Court decision [prohibiting bus segregation].”² That’s the voice of constitutional law.

Constitutional law’s faith in court decisions to vindicate constitutional rights narrows the scope of constitutional actors to the typical work crew that shows up to court: judges, lawyers, and litigants. When the Supreme Court decided Brown v. Board of Education (1954), Marshall expected pushback from White-controlled school boards in the South and elsewhere, but he wasn’t worried. “You can say all you want,” he said, “but those white crackers are going to get tired of having Negro lawyers beating ’em every day in court. They’re going to get tired of it.”³ When all you have is constitutional law, every problem can be solved by courts. And when your opposing counsel gives up in court, the game is up.

Underlying Marshall’s assessment of the Montgomery Bus Boycott and school litigation is the key assumption of constitutional law: that the Constitution is primarily a legal document providing legal remedies. It sees constitutional rights as court-determined things. Constitutional law views the Constitution as a super statute, sharing the features of other statutes: It is a fixed, written document resolved and interpreted by courts.⁴

Marshall’s belief in the rulings of courts and the retreat of opposing counsel assumes a vision of constitutional politics I will call pure constitutional law—the belief that constitutional law is the fullest, truest, and most real form of constitutionalism. It views the use of constitutional language in non-court venues as, at best, the lumberyard of constitutional law. It’s the place where judges and attorneys look for materials to build our constitutional structure. The real constitutional construction happens in the courts.

This vision comes at a cost: It places most citizens (the nonlawyers, nonlitigants, and nonjudges) in the position of waiting for courts to determine their constitutional destiny. It puts the work of community action and political deliberation at the periphery of our constitutional life. It prefers waiting for the courts to determine the legal parameters of what the Constitution can do over the thick actions that make those thin rights real.

This model may have worked in the mid-20th century, but it cannot work today. The 6-3 conservative majority of today’s Supreme Court wants nothing more than to keep the Constitution to itself. Under current conditions, pure constitutional law is a recipe for liberal disillusionment and despair. This deference to such law, considered an essential feature of constitutionalism to 20th-century legal liberals like Marshall, is an act of abdication in the 21st century. It empowers our political enemies and paralyzes our political friends.

Believing we will move the needle of constitutional interpretation in a liberal direction at the current Supreme Court with clever legal arguments or well-chosen archival research is largely an illusion. The best we can hope for is harm reduction by occasionally embarrassing the Court into maintaining hard-won liberal gains under constitutional law. This is important work. However, in pursuing it, we are always at risk of reinforcing the idea that the Supreme Court is the venue where our constitutional values are ultimately determined.

II. The American left has historically preferred constitutional politics

To understand the despair that pure constitutional law can lead us to, consider the current mood of its chief advocates: liberal constitutional-law professors. In a 2024 New York Times opinion piece, one liberal law professor confessed to weeping when they added recent Roberts Court decisions to their syllabus; another asked, “How do you teach students the relationship of a free person to their government?”; and yet another spoke of the difficulty of “ministering” to law students while “trying to restore your own faith.”⁵

Prior to the Warren Court, American progressives of all types would have found this despairing response to judicial declarations of constitutional supremacy strange. Frederick Douglass rejected the Supreme Court’s decision in Dred Scott v. Sandford (1857), which held that a Black person like him could never be an American citizen. He mocked the idea that the Supreme Court had the final say on what the Constitution meant. “We are now told, in tones of lofty exultation, that the day is lost—all lost—and that we might as well give up the struggle. The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still.”⁶

Douglass would have none of that talk: “While the press is at liberty, and speech is free, and the ballot-box is open to the people of the sixteen free States; while the slaveholders are but four hundred thousand in number, and we are fourteen millions; while the mental and moral power of the nation is with us; while we are really the strong and they are the weak, it would look worse than cowardly to retreat from the Union.”

When confronted with the Supreme Court reading the Constitution in light of the right to property in other humans, including him, Douglass read the Constitution in light of the right to liberty. He believed constitutional politics (rights to free speech, a free press, and the free vote) was the way to go about it. Most abolitionists felt the same. They fought until they got their Republican Congress and Abraham Lincoln.⁷

The labor movement shared a similar skepticism of the Court in the Gilded Age and the Progressive Era. Workers faced federal district courts ordering the termination of strikes for better working conditions and a Supreme Court shooting down labor-reform legislation under the right to contract. “I am sick and tired of listening to lawyers,” journalist and labor activist Henry Demarest Lloyd fumed, “declaring everything we ask unconstitutional.”⁸

Labor activists insisted on reading the Constitution through the “doctrine of equality.” Populist James F. Hudson argued the doctrine of equality required that the Constitution be read to secure “the widest distribution among the people, not only of political power, but the advantages of wealth, education, and social influence.”⁹

In his 1892 campaign book, Populist presidential candidate James Weaver stated that the doctrine of equality put the Constitution back on its proper foundation, “restor[ing] to Congress its Constitutional and exclusive control over commerce, money, transportation, and telegraphy.” Gilded Age legal and political elites had “wrenched” these public goods “from the people and passed [them] to the control of the monopolists. To reclaim them is the great duty of the hour.”¹⁰

When confronted with industrial plutocrats and their judges reading the Constitution in light of the right to property, the labor movement read the Constitution in light of the doctrine of equality. They fought until they got their Democratic Congress and Franklin Delano Roosevelt.¹¹

III. The Founders believed constitutional meaning came from constitutional politics

While many of the Founders would have opposed the particular policies advocated by abolitionists and labor activists, the idea that the Constitution must be interpreted in response to particular political goals would not have shocked them. During the Constitutional Convention, James Madison insisted, “The [Constitution’s] paper will only mark out the mode & the form. Men are the substance and must do the business.”¹² During ratification, the Constitution’s advocates emphasized the openness of its meaning. “Let us give it a trial,” argued Constitutional Convention member John Dickinson. “A little experience will cast more light upon the subject [of the Constitution’s meaning], than a multitude of debate.”¹³ What else could one expect from a document created via “the reconciliation of jarring interests and opposing claims between the several states?”¹⁴

The Federalists not only relied on the amending power of Article V of the Constitution to clarify the document’s meaning, but they also believed that the actions of politicians would help fill out the meaning of the text. Future Supreme Court Justice James Iredell conceded there could be “possible ill construction” of the Constitution but argued “we must depend on our future Legislature” because “it is impracticable to define every thing.”¹⁵ Summarizing the record of the ratification debates of the Constitution, historian Jonathan Gienapp states, “The constitution embodied the beginning, rather than the end, of a long-developing conversation about self-government.”¹⁶

The early federal Congress revealed how many issues were left unresolved in the text of the Constitution. The initial months of the first Congress were consumed by the issue of whether a president could remove Cabinet secretaries of his own accord, or whether he needed the advice and consent of the Senate to do so. The Constitution did not (and does not) say. Debating the Article V amendment process raised the following question: Should Congress incorporate amendments into the text of the Constitution or append the amendments at the end? Article V was (and remains) silent. Or what about the question that divided US politics into the Jacksonian era: Does Congress have the power to create a National Bank? You can stare a hole into the word “commerce” and the phrase “necessary and proper” in Article I, Section 8, and it won’t provide a definitive answer.¹⁷

To answer questions like these, the Founding generation needed an extratextual theory of what kind of document they were looking at. They individually advocated for several conflicting alternatives. Thomas Jefferson believed the Constitution was a treaty between sovereign states created at the time of its ratification. Therefore national power should be read narrowly and constrained so as not to impinge on the power of the states who were party to the treaty. At the other extreme was James Wilson, signer of the Declaration of Independence and the Constitution, who believed the American people created a new national community at the time of the Declaration of Independence, which the Constitution’s ratification reaffirmed. Therefore the meaning of the Constitution should be read broadly, dynamically, and in tandem with the Declaration of Independence to further the goals of the people who made it. Other Founders (like James Madison and John Marshall) fell somewhere in between these two extremes.¹⁸

The Founders understood that the text of the Constitution did not (and does not) answer the questions of what kind of text (and what kind of Union) the Constitution creates. There was (and is) only one way to figure it out—through the political process, the process of advocating for what we want to see happen and electing leaders to positions of power to act on it. When we look for the “original public meaning” at the Founding, we find a plurality of contested views worked out primarily through the political process. Constitutional politics is the original constitutionalism.

IV. You are a constitutional agent

I hate going to protests. I like spending my time reading, watching movies, talking with friends, and (when my dander is up) writing about topics that have made me angry. But in the era of the second Trump administration, I have started going to them. I consider it important to go because judicial opinions do not make our rights real; using our rights makes them real. Per King and pace Marshall, we cannot rely on the courts to protect our rights; we must act on them.

When Frederick Douglass went on the rostrum to speak, he acted as if he were a free man, even though Dred Scott said he was not even a citizen. When workers went on strike during the Gilded Age, they acted as if they were citizens of a republic, the equals of any railroad baron, even though courts told them they were engaging in criminal assaults on the sacred constitutional rights of property and contract. Abolitionists and labor activists understood that the first step toward building a new constitutional order is acting as if the rights of that constitutional order already exist. They understood we are both the inhabitants and the builders of our constitutional order. They remind us that “We the People” includes you. Here’s a hammer and nails.

Martin Luther King Jr., “MIA Mass Meeting at Holt Street Baptist Church,” December 5, 1955, the Martin Luther King Jr. Research and Education Institute.
Nicholas Lemann, “The Lawyer as Hero,” The New Republic, September 13, 1993.
James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy (Oxford: Oxford University Press, 2001), 85.
Jonathan Gienapp wrote about how this legal view of the Constitution is a historical product and makes originalism just another form of living constitutionalism in Against Constitutional Originalism: A Historical Critique (New Haven, CT: Yale University Press, 2024), 242–250.
Jesse Wegman, “The Crisis in Teaching Constitutional Law,” New York Times, February 26, 2024.
This quote and the subsequent quote can be found in “The Dred Scott Decision: An Address Delivered, in Part, in New York, New York, in May 1857,” the Frederick Douglass Papers.
Adam Rust, “The Fight Makes the Meaning: Noah Feldman, James Oakes, and the Lessons of Antislavery Constitutionalism,” Liberal Currents, June 20, 2022.
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Cambridge, MA: Harvard University Press, 2022), 155.
Fishkin and Forbath, The Anti-Oligarchy Constitution, 164.
Fishkin and Forbath, The Anti-Oligarchy Constitution, 166.
William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (Princeton, NJ: Princeton University Press, 1994) provides a history connecting Gilded Age and Progressive Era antagonism to Franklin Delano Roosevelt’s court-packing scheme.
Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Cambridge, MA: Harvard University Press, 2018), 63.
Gienapp, The Second Creation, 79.
Gienapp, The Second Creation, 78. The quote comes from Oliver Ellsworth, member of the Constitutional Convention, writing during the ratification debates under the pen name “A Landholder” for the Connecticut Courant.
Gienapp, The Second Creation, 81.
Gienapp, The Second Creation, 77.
Gienapp, The Second Creation, 164–324.
Jud Campbell, “Four Views of the Nature of the Union,” Harvard Journal of Law & Public Policy Vol. 47 (2024), 13–37.