The Constitution’s Not the Problem

A public opinion poll conducted on the occasion of the 200th anniversary of the U.S. Constitution in 1987 revealed that most Americans knew little about the document’s contents and purpose. Only a slim majority knew that the Constitution’s main goal was to create a federal government and define its powers, while nearly half mistakenly believed it contained Karl Marx’s phrase “From each according to his ability, to each according to his need.”

Other significant findings from the survey included the following:

• More than half believed the president alone can appoint a Supreme Court justice.
• Many thought the Constitution established English as the national language.
• A majority believed the Constitution guarantees the right to free public education.
• Almost half wrongly assumed a Supreme Court decision can never be overruled.
• Nearly half believed a president can suspend constitutional liberties in a national emergency.
• Eighty-five percent thought any important case could be appealed from state courts to the Supreme Court.
• Forty-six percent of Americans did not know the Constitution’s purpose was to create a federal government, and 26 percent incorrectly believed it was written to declare independence from England.

Most Americans revere the Constitution, calling it the charter of liberty, the cornerstone of democracy, a guardian of rights and a beacon of freedom. These phrases reflect its near-sacred status in American political culture, symbolizing protection of liberty and self-government.

But does it deserve this reverence? Thurgood Marshall, the first Black Supreme Court justice, had his doubts. On the Constitution’s 200th anniversary, he called it “defective from the start.” Marshall noted that the framers excluded most Americans from “We the People,” and though some voiced objections to slavery, they ultimately “consented to a document which laid a foundation for the tragic events that followed.”

---

Though Thomas Jefferson praised the Constitution as the work of “demigods,” criticism of the document has existed since its inception.

During ratification, the Constitution faced strong opposition. The votes were close: 187 to 168 in Massachusetts, 57 to 47 in New Hampshire, 30 to 27 in New York and 89 to 79 in Virginia. North Carolina and Rhode Island initially refused to ratify it.

Antifederalists opposed the Constitution for several reasons: concerns about centralized power, the lack of a religious test for office and the absence of guarantees for rights like counsel, protection against self-incrimination and bans on cruel punishments. Their main objections were that the Convention had exceeded its authority, the Constitution leaned toward monarchy and it lacked protections for individual and states’ rights.

Despite their concerns, many Antifederalists reluctantly supported ratification, fearing disunion. James Madison secured their backing by promising a Bill of Rights.

Over time, critics have pointed to the Constitution’s vague language, limited direct citizen participation, disproportionate power given to small rural states, the broad authority of unelected judges and the difficulty of amending the document. While it restricted federal power, it did not guarantee fundamental rights like education and health care.

---

The U.S. Constitution is the oldest written national framework still in use, contrasting sharply with other nations that frequently revise their constitutions. For example, while the U.S. has been governed by the same Constitution for over two centuries, France has had 10 different constitutional orders, and El Salvador has adopted 36 constitutions since 1824.

Nearly all nations—except Britain, Israel and Saudi Arabia—now have written constitutions, but many differ significantly from the U.S. model, even in countries like Japan, where the post–World War II constitution was heavily influenced by the United States’.

Key differences include the rigidity of the U.S. Constitution, which has been amended only 27 times. The amendment process is notoriously difficult, requiring supermajorities in Congress and approval by the states. In contrast, other countries, like Japan, allow for amendments via national referenda, and many nations regularly update their constitutions to reflect political and social changes.

The U.S. system also features a strict separation of powers between the executive, legislative and judicial branches, with the president independent from Congress. By contrast, many parliamentary democracies, such as the U.K., Germany and Japan, have executives embedded in the Legislature, with the prime minister typically serving as the head of government.

Unlike the United States, where the president serves as both head of state and head of government, many nations separate these roles. For instance, Japan has a ceremonial emperor as head of state and a prime minister as head of government, a model not uncommon in parliamentary democracies.

While the U.S. Constitution’s Bill of Rights provides strong civil liberties protections, newer constitutions, such as South Africa’s or Japan’s, often include broader—positive—social and economic rights, including access to education, health care and housing.

The U.S. Constitution also establishes a federal system, granting significant power to state governments. In contrast, countries like Japan operate under unitary systems where power is centralized in the national government.

Judicial review, a key feature of the U.S. Constitution, gives the Supreme Court significant influence over law and policy. While judicial review exists in countries like Japan, their courts have historically been more restrained. Other nations, such as Germany, have constitutional courts specifically designed to handle constitutional matters.

This country’s Electoral College system, which can result in a president winning without the popular vote, is another distinctive feature. Most other democracies use popular votes or parliamentary systems to select their leaders.

Finally, the U.S. Senate, with equal representation for each state regardless of population, gives smaller states disproportionate influence. Many other nations, such as Germany and Japan, use proportional representation in their legislatures, which more accurately reflects population distribution and gives smaller parties greater representation.

Over all, the U.S. Constitution’s rigidity, separation of powers and unique features like the Electoral College and Senate representation set it apart from other nations’ more flexible, centralized and proportional systems.

---

Aziz Rana’s The Constitutional Bind offers one of the most important recent studies of the U.S. Constitution. Published earlier this year, the book argues that the veneration of the Constitution, which many assume has always been central to American civic life, is actually a relatively recent development, emerging in the late 19th century as the U.S. became a global power. According to Rana, this near-religious reverence has troubling implications for democratic governance.

Rana challenges the popular belief that the Constitution has always been viewed as a sacred text. He shows that, for much of American history, it was regarded as a practical framework for governance rather than an object of national worship. Throughout the 19th and early 20th centuries, populists, socialists and progressives viewed the Constitution as an obstacle to democratic progress, often calling for significant amendments or even drafting new constitutions altogether. Radical groups like the Black Panthers proposed entirely new constitutional frameworks as part of their vision for a more egalitarian society.

Rana links these historical critiques to contemporary movements advocating for major constitutional reforms, suggesting that questioning the Constitution’s legitimacy has deep roots in American political history.

Rana argues that the veneration of the Constitution only emerged as a defense of U.S. imperialism following the Spanish-American War of 1898. Facing criticism for the United States’ imperialist actions in the Philippines, Cuba and other territories claimed from Spain, the Republican leaders promoted the idea of the U.S. as a unique “empire of liberty,” invoking a phrase coined decades before by Thomas Jefferson. This narrative framed U.S. expansion as nation-building for self-determination, with the Constitution serving as the foundation for American exceptionalism—both a safeguard against tyranny at home and a model of self-rule for colonized societies.

One of the book’s central themes is the Constitution’s dual role in supporting both liberal and illiberal agendas. While the Constitution has been invoked to advance civil liberties and rights, it has also been used to justify suppressing dissent and even the internment of Japanese Americans in World War II. Rana argues that the Constitution’s flexibility has allowed it to serve both progressive and illiberal causes, underscoring its ambiguous role in American history.

Rana examines how the Supreme Court became a focal point for liberal constitutionalism, particularly during the New Deal and the Warren Court era, when decisions on civil rights and due process shifted liberal political energies from legislative activism to judicial rulings. While these rulings expanded rights, Rana suggests that they also sidelined broader democratic mobilization, placing too much reliance on judicial solutions.

Rana also contrasts different historical views of the Constitution. Frederick Douglass, for instance, believed that a proper interpretation of the document could fulfill America’s democratic and egalitarian promise. In contrast, Black radicals of the 1960s and 1970s saw the Constitution and the American project as fundamentally illegitimate due to the legacies of slavery and Indigenous dispossession. This tension between reform and rejection continues to shape debates on constitutional change.

In his conclusion, Rana advocates for moving beyond the Constitution’s constraints to create a truly democratic society. He calls for structural reforms like abolishing the Electoral College and the Senate filibuster and replacing the winner-take-all single-district system for House elections. These changes, he argues, are essential to making American governance more democratic and better equipped to address issues like corporate power, economic inequality, climate change and labor rights.

Rana’s book challenges the popular narrative that the Constitution has consistently promoted democracy and equality. He emphasizes moments when the document upheld slavery, segregation and economic inequality, as well as antidemocratic features like the Electoral College and Senate representation. Rana also shows how interpretations of the Constitution have shifted with political context, proving that its meaning is not fixed.

A key insight from The Constitutional Bind is that the Constitution, while championing civil liberties, has also been used to justify their suppression, particularly during wartime. Liberal reverence for the Constitution, Rana argues, has promoted a gradualist approach to reform, which may discourage more radical changes by framing progress as possible only within the existing system.

Despite its breadth, the book leaves some areas underexplored, particularly issues related to Asian Americans, Latinos/as, immigration and Indigenous sovereignty. These topics, central to the nation’s constitutional history, are only briefly addressed.

Ultimately, Rana raises a critical question: Can the existing constitutional framework accommodate the deep reforms needed to address today’s political and social challenges? He suggests that moving beyond the Constitution may be necessary to build a truly democratic system capable of confronting the complexities of modern life.

---

Over the years, hundreds of amendments to the U.S. Constitution have been proposed, but few have been adopted. The high bar for ratification—requiring two-thirds approval in both houses of Congress and ratification by three-fourths of the states—has resulted in only 27 amendments being adopted since 1789. Here are some notable amendments that were proposed but never ratified:

• Equal Rights Amendment (ERA): First introduced in 1923 and reintroduced in 1972, it aimed to guarantee equal rights regardless of sex. While it passed Congress, it fell short of the required state ratifications by the deadline. Efforts to revive the amendment continue.
• Flag Desecration Amendment: Proposed multiple times, particularly after the Supreme Court’s Texas v. Johnson decision in 1989, which protected flag burning as free speech. Although passed by the House, it failed to gain the necessary two-thirds majority in the Senate.
• Balanced Budget Amendment: Popular in the 1980s and 1990s, this would have required the federal government to maintain a balanced budget each year. While it passed the House, it never secured the needed majority in the Senate.
• Term limits for Congress: Several proposals sought to limit U.S. representatives to three two-year terms and U.S. senators to two six-year terms. None passed Congress.
• Abolition of the Electoral College: Efforts to replace the Electoral College with a national popular vote intensified after controversial elections in 2000 and 2016. None of these proposals garnered sufficient support in Congress.
• Bricker Amendment: In the 1950s, this proposed to limit the president’s treaty-making powers. It came close to passing in 1954 but ultimately failed in the Senate.
• Anti-Polygamy Amendment: In the late 19th and early 20th centuries, several amendments were proposed to outlaw polygamy in the U.S., but none were adopted.
• Child Labor Amendment: Proposed in 1924, this amendment would have given Congress the authority to regulate child labor. It passed Congress but was ratified by only 28 states.
• Repeal of the 22nd Amendment: Several attempts have been made to repeal the amendment limiting presidents to two terms, but none gained significant traction.
• Official Language Amendment: Proposed multiple times, particularly in the 1980s and 1990s, this would have established English as the official language of the U.S., but it never passed.
• School Prayer Amendment: Multiple proposals sought to legalize voluntary prayer in public schools, particularly after Supreme Court rulings in the 1960s banned official school prayers. None passed Congress.
• Congressional pay limits: Several proposals aimed to prevent Congress from raising its own pay without voter approval. The 27th Amendment, which addresses congressional pay raises, was ratified in 1992 after being initially proposed in 1789, but other proposed reforms have not advanced.

Although Congress shows little interest in pursuing systemic reforms via constitutional amendments today due to the difficulty of the process, there are still calls for change from outside the legislative chambers, including:

• Overturning Citizens United: This would reverse the 2010 Supreme Court decision allowing unlimited corporate spending in elections, to limit the influence of wealthy donors in politics.
• Right to Vote Amendment: This would establish an explicit right to vote in the Constitution, making it harder for states to pass restrictive voting laws.
• Reviving the ERA: Efforts to ratify the Equal Rights Amendment continue, seeking to guarantee gender equality in the Constitution.
• Abolishing the Senate filibuster: Critics argue that the filibuster blocks major legislation, even when supported by a Senate majority.
• Public financing of campaigns: Proposals call for campaign finance reform, ensuring political influence isn’t tied to wealth.
• Abolishing corporate personhood: This would limit corporations’ ability to claim constitutional rights such as free speech and religious rights.
• Right to Abortion Amendment: Advocates seek to enshrine the right to access abortion and reproductive health care in the Constitution, preventing states from imposing restrictions.
• Environmental Protection Amendment: Some have called for a constitutional guarantee to a healthy environment, obligating the federal government to take action on climate change.
• Supreme Court reform: Proposals to limit Supreme Court justices’ terms or expand the number of seats aim to make the judiciary more democratically accountable.

---

Attacking the Constitution won’t solve America’s political challenges. Legal scholars like Aziz Rana miss the point—the real work of democratic change lies in politics, not in overhauling the nation’s framework.

Political power, not constitutional rules, drives change. Instead of blaming the Constitution, the focus should be on the hard work of democratic politics: coalition building, policy prioritization and leadership.

While critiques from the left often highlight structural and legal obstacles, the true issues stem from the challenges of democracy itself. Progress depends on political action, not constitutional revision.

The root problems aren’t structural but political. Effective leadership, strategic policymaking and grassroots mobilization offer a far more practical path forward than rewriting the Constitution. The real barriers to change lie in the practice of politics, not the Constitution itself.