The National Constitution Center will host the first presidential debate next week between Kamala Harris and Donald Trump. The event will surely celebrate the US Constitution — but the Constitution isn’t worth celebrating.
The first debate between Donald Trump and Kamala Harris will be on September 10 at the National Constitution Center in Philadelphia, an institution designed to “disseminate information about the U.S. Constitution on a nonpartisan basis to increase awareness and understanding of the Constitution among the American people.” Jeffrey Rosen, the center’s president and CEO, called presidential debates a “meaningful opportunity for all Americans to learn more about the principles that define American democracy, embodied in the Constitution, the Declaration of Independence, and the American idea.”
I suspect Trump and Harris will each note the location during the debate and accuse the other of not being sufficiently loyal to the framers’ creation. Both have already attempted to undermine their opponent’s constitutional bona fides. “Kamala went full communist,” Trump claimed at a rally in Pennsylvania. Meanwhile, Harris asserted, “Someone who suggests that we should terminate the Constitution of the United States of America should never again stand behind the seal of the president of the United States.”
It will surely be riveting stuff. But before the two candidates try to out-Constitute each other on a national stage, it’s worth understanding the context in which the Constitution Center was created, challenging its supposed neutrality, and most important, asking if the Constitution deserves the title bestowed upon it by the center as “the greatest vision of human freedom in history.”
In The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, law professor Aziz Rana explains that by the end of the 1980s, “Americans had moved far from the politics of national self-examination that existed in the 1960s and early 1970s.” As the Constitution’s bicentennial approached, a “conservative political ascendancy” fortified an “even more self-congratulatory climate, which praised American exceptionalism and raised to seemingly mythic status the eighteenth-century framers.”
Writing at the time, American legal scholar Sanford Levinson concluded that the Constitution “embodied nothing less than the country’s ‘civil religion.’” Levinson also noted a “persistent invocation of religious language” around the Constitution and the “pervasive treatment of the Constitution as a ‘sacred object.’”
President Ronald Reagan signed the Constitutional Heritage Act during this climate of intense constitutional reverence. The act created the National Constitution Center and, fittingly, gave America’s “sacred object” its own shrine. The center was tasked with increasing “public awareness of the Constitution and the democratic process,” presenting the Constitution’s “profound impact on the political, economic and social development of this Nation,” and recognizing “Americans instrumental in the history of the Constitution.”
The center’s groundbreaking ceremony was held on September 17, 2000, the two-hundred-thirteenth anniversary of the Constitution’s signing. Four years later, an amended spending bill made September 17 Constitution Day and Citizenship Day. This month, Constitution Center honorary cochair and Supreme Court justice Neil Gorsuch will join visitors for a weeklong Constitution Day celebration, including in-person Constitution readings, a “We, the People” live show, and a star-spangled cake cutting.
You might assume the Constitution Center is a place of unadulterated worship of the Constitution, but it’s not that simple. Rana, an outspoken critic of the Constitution, was invited to debate conservative political analyst and journalist Yuval Levin on whether or not the Constitution can unify the country. Neither was particularly kind to the sanctified document as it exists.
There’s “a view that the Constitution is not serving us well,” explained Levin,
and certainly there is some truth to that view. Our system now is in a moment when it frustrates us. When we think about what could be changed, I think it’s important for us to grasp the ways in which the Constitution is working and not working in this moment.
The problem, added Rana, is that the Constitution’s “countermajoritarian checks and constraints are far more extreme than comparable constitutional democracies in a way that inhibits that underlying value of one person, one vote, and makes it very hard for organized majorities to influence policy.” At the same time, continued Rana, the Constitution “limits or delays policy and mobilizes and facilitates rule by particular empowered minorities.”
In addition, the center’s website describes the 1776 Pennsylvania Constitution as the “most democratic (and radical) of the state constitutions” and highlights the “inspiring Preamble” and “robust Declaration of Rights.” This is a somewhat surprising assertion, since the federal Constitution curtailed the power of state constitutions like Pennsylvania’s that featured a unicameral legislature (which John Adams considered “a halfway house to despotism”), made elected officials recallable, and limited them to short terms in office. And last month, UC Berkeley Law dean Erwin Chemerinsky was asked to comment on the Supreme Court’s latest term for the center. His new book, which received a positive review in the New York Times and scorn from Elon Musk, is titled No Democracy Lasts Forever: How the Constitution Threatens the United States.
Historically, the Constitution has benefited from a liberal dose of propaganda, including shrines for department stores and private homes, citywide readings of the Bill of Rights, “Freedom Trains” that toured the country displaying various treasures, including paintings of the framers and George Washington’s copy of the Constitution, and two lavish centennial celebrations in 1887 and 1987. The Constitution Center does not engage in this kind of ham-fisted Cold War propaganda. Still, it contributes to what Daniel Lazare called the “political playing field” of constitutional discourse and practice.
Supporters like Levin and critics like Rana; patriots like James Madison and dissidents like W. E. B. Du Bois; aristocratic republicans like Alexander Hamilton and democratic republicans like Paine — almost everyone can be incorporated into the center’s wide embrace and the loving arms of American “democracy.” The center engages with a wide variety of perspectives and presents them to the public as nonpartisan and neutral.
Chairmen of the center include former presidents and current Supreme Court justices, so claims of nonpartisanship are dubious, as are all claims of neutrality in politics, of course. Telling the public the United States is a democracy, saying the First Amendment “guarantees five core freedoms,” and calling the Constitution “the greatest vision of human freedom in history” is an eminently political act.
Ultimately, the Constitution Center is propaganda of a different type. It hides the Constitution’s blemishes and portrays the framers’ creation as politically neutral, tolerant of dissent, and capable of meaningful transformation through its own rules.
Those blemishes are abundant. The House has been gerrymandered and malapportioned into irrelevance. Winner-take-all elections all but ensure two-party rule. By 2040, 70 percent of the population living in fifteen states will be represented by only thirty senators. George W. Bush and Donald Trump, neither of whom initially entered the White House with a plurality of the popular vote, have appointed five of today’s six Republican justices, and four of those justices were confirmed by a majority of Republican senators representing a minority of Americans. Furthermore, as scholar and author Michael Klarman explains, remedying any of the Constitution’s problems through Article V is “virtually impossible.”
Trump and the Republican Party have done well by the Constitution. Partisan gerrymandering, geographic clustering, and, most important, Senate malapportionment have given the Republicans disproportionate congressional power for decades. As Klarman notes, between 2020 and 2022, the fifty Republican senators represented forty million fewer people than the fifty Democratic senators. If not for the Electoral College, Republicans would have lost seven of the past eight elections, and Trump would be gunning for a first term instead of a second. Should Trump enter the White House in November, he will benefit from a political system created by the Constitution, including the all-but-impossible impeachment process and the unelected federal judiciary at his beck and call.
Of course, if Harris takes the White House, she would also benefit from the executive’s immense powers. However, the Democrats have less to gain by the Constitution than the Republicans. Trump could once again win the Electoral College. After all, Joe Biden won roughly seven million more votes in 2020 but only won the Electoral College thanks to some 43,000 votes across three swing states. If Harris wins, she will face a Supreme Court decidedly not of her party’s making, a House with undue Republican influence, and the same Senate that killed the John Lewis Voting Rights Act and the Build Back Better Act. If geographic trends continue, Congress may be forever beyond the Democrat’s control.
For the past year, the Democrats have praised the Constitution and touted their democratic bona fides. “What will we do to maintain our democracy,” Biden asked an audience last September. “Do we still believe in the Constitution?” Harris has picked up where Biden left off, imploring supporters at the Democratic National Convention to imagine Trump without any constitutional “guardrails.” If Harris were genuinely interested in democracy, she would use her platform at the Constitution Center to demand a democratic constitution. She could condemn the Electoral College and Senate for empowering Republicans, rail against the far-too-onerous two-thirds impeachment requirement that kept Trump in office and protects corrupt justices, or criticize Article V for making amendments a fantasy.
But we shouldn’t hold our breaths. Neither political party will rock the boat when either could win in November.
The National Constitution Center is advertised as a “thriving museum” that “brings the Constitution to life” for each of its hundreds of thousands of yearly visitors. Everything about the project — from the website’s red, white, and blue color scheme, to the building’s massive “We the People” mural, to the forty-two life-size, bronze statues of the framers in Signers’ Hall — is designed to invoke a sense of optimism, dynamism, and vitality. Given the effort to create such a positive environment, it’s ironic that the Constitution created a political system that so many today describe in negative terms.
The center is preparing for the presidential debate and a Constitution Day cake cutting with Justice Gorsuch. Meanwhile, more than six in ten Americans hold little to no confidence in the US political system, and Erwin Chemerinsky is only the latest observer calling the Constitution a threat to whatever democracy remains. Each passing day, the Constitution Center’s efforts to defend the Constitution seem increasingly absurd. No monument lasts forever.
This post was originally published on Jacobin.