It has been a rocky year for the U.S. Constitution. Eight months into a fast-moving presidency that legal scholars keep describing as a “constitutional stress test,” the Trump administration’s sweeping assertions of executive power have prompted an unprecedented number of legal challenges, including from Harvard, accusing it of violating the Constitution. This April, one national poll found that two-thirds of Americans were concerned about a constitutional crisis. Yet the nation’s founding document still rates as high as ever, with about nine out of ten people expressing a favorable view.
Should they, though? Is the Constitution really up to the task of preserving democracy in this moment? Or is it, as the title of a Wednesday evening discussion asked, “broken”? Two constitutional law scholars—Aziz Rana ’00, Ph.D. ’07, and Harvard Law professor Noah Feldman—debated the answer on Boston Common, seated at the foot of The Embrace, the monument to Martin Luther King Jr. and Coretta Scott King. Co-sponsored by the Hutchins Center for African and African American Research, the event was moderated by Loeb associate professor of the social sciences Brandon Terry.
To Rana, a Boston College professor who last year published The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them, the Constitution is, indeed, broken. In fact, he argued, the U.S. constitutional system has “super-charged” the current assault by Trump and his allies on the rights and civil liberties that were expanded during the twentieth century. “There is no way to protect those hard-won achievements—achievements that MLK fought and died for,” Rana said, “without ultimately changing pretty foundational features of the hard-wired components of our constitutional system.”
Chief among those hard-wired components, he said, is the Constitution’s focus on states, rather than individual voters, as the basic “representational unit.” That arrangement “shapes all the elements of our electoral and legal system,” Rana said: the House and Senate, the Electoral College, Supreme Court confirmations. And this arrangement is partly why the U.S. Constitution is among the hardest in the world to amend. It doesn’t simply undermine majority rule, he added; the minority it empowers are those who have historically weilded disproportionate influence in the political system. “And what this has meant,” Rana said, “is that across American history, even if you have large-scale majorities—even supermajorities—who commit to these various central principles, like racial equality, like civil liberties, like economic democracy, it’s virtually impossible to actually overcome many of the veto points to make them real.”
Feldman, the Frankfurter professor of law, offered a rebuttal that was part philosophy, part pragmatism. “Politics is the art of the possible,” he said, recalling how leaders of the small states had staged a walkout during the 1787 Constitution Convention, threatening to blow up the whole process unless they were granted equal representation in the Senate. Fearing the country would end up with no constitution at all, the large states relented.
“So, I’m agreeing with Aziz,” Feldman said, “that state control is the source of many of our problems, and it is a key part of why the Constitution is undemocratic.” But it was the “best available alternative,” and that same strategic thinking, he argued, should guide Americans today, too. Even now, he said, “The Constitution is better than any alternative available to us in the real world.”
Feldman cited another reason to defend the Constitution: It “has the capacity to evolve and change.” In 1919, he explained, Supreme Court Justice Oliver Wendell Holmes Jr. “basically invented modern free speech law,” establishing, in a series of opinions, the now-fundamental concept that free expression should be permitted unless it poses a clear danger to others. “He understood that the Constitution had to evolve,” Feldman said.
Earlier, in the 1850s, Frederick Douglass, who had previously condemned the Constitution as irreparably broken and immoral because of its compromises on slavery, changed course, writing that the document, if correctly interpreted, must be read to abolish slavery. A century later, King, who once wrote that “an unjust law is no law at all,” adopted a similar position, arguing that the Constitution, which had allowed for racial subjugation, must be redeemed to fulfill its moral promise.
“I don’t think the Constitution is perfect,” Feldman said. “Very, very far from it. But the Constitution as we have it is under assault. We should stand up for the principles that are embedded in it, that we believe in and that we care about, and fight for those principles….When I say the Constitution isn’t broken, I don’t mean don’t fix it.”
In response to audience questions, Rana and Feldman got into the weeds on gerrymandering, executive orders (neither ideal for the Constitution, the speakers contended), and the judicial appointment process. Terry asked a final question about Harvard, which had just received word that some of its grant funding, curtailed by the Trump administration earlier this year, would be reinstated after a federal district court judge ruled that the government’s actions violated the First Amendment.
“Why should the broader public care what happens to the constitutional rights of elite universities?” Terry asked.
Rana, citing political philosopher Alexis de Tocqueville, said universities are part of a vibrant civil society that lies at the heart of democratic culture. “To me, in our twenty-first century, the university system, the press, churches, unions, political parties (when they’re not just vehicles for politicians to get elected) … are actually mass membership organizations that provide a social world for participants,” he said. “All of these are the essential repositories of constitutional democracy.”
Feldman, again, leaned on pragmatism. “The reason people should care about the First Amendment rights of an elite university,” he concluded, “is the same reason that we should care about the constitutional rights of people who are being unconstitutionally targeted by ICE raids in Los Angeles… because if it can happen to them, it can happen to us. That’s the most basic, fundamental, non-philosophical, not morally oriented reason that we have rights. The whole point of rights is that if you can come after one person’s rights, you can come after everybody’s rights. It’s as simple as that.”
