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haymarketbooks .org, where all paperback

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books are 20 %

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off every day. Welcome

1:15

to the Dig, a podcast from

1:17

Jacobin Magazine. My name is

1:20

Daniel Denver, and I'm broadcasting from

1:22

Providence, Rhode Island. This

1:24

is the second in our

1:26

three -part series with Aziz

1:28

Rana reexamining the entirety of

1:30

American history through alternating periods

1:33

of conflict and quiescence

1:35

around our liberal

1:37

capitalist imperialist constitutional order. This

1:40

is the history of how

1:42

an avowed white Anglo settler

1:44

colony, practicing the widespread enslavement

1:46

of black workers while expanding westward

1:49

through the dispossession of indigenous

1:51

land, transformed itself in the wake

1:53

of the Spanish -American War in

1:55

World Wars I and II, into

1:57

a global empire that claimed its

2:00

right to hegemony by

2:02

virtue of its universalist

2:04

emancipatory principles. And then

2:06

it's the history of how that all.

2:08

through our present moment, has

2:10

spectacularly fallen apart. In

2:13

the first episode, we traced the

2:15

foundation of the American settler empire

2:17

from the revolutionary generation through the

2:19

eve of World War One. This

2:22

episode, we moved through World

2:24

War One in the ensuing first

2:26

red scare, a time

2:28

of hypernationalistic, racist, and

2:30

xenophobic 100 % Americanism that

2:32

crushed the organized left. Then

2:35

we move on to

2:37

the Communist Party USA, the

2:39

New Deal, World War

2:41

II, the war in

2:43

court, and the Cold

2:45

War, when American liberalism,

2:47

anti -communism, and empire

2:49

triumphed. In our third and

2:52

final episode, we'll tell the

2:54

story of the long unraveling of

2:56

the American order, domestically and

2:58

globally, from the Vietnam

3:00

War through our

3:02

moment today. facing the

3:04

extraordinary authoritarian challenge

3:06

of MAGA 2 .0. Briefly,

3:11

if you depend upon the dig, please

3:13

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P -A -T -R -E -O -N dot com

4:02

slash the dig. Okay, here's Aziz

4:04

Rana, a professor of law at

4:06

Boston College Law School, where his

4:08

research and teaching center on constitutional

4:10

law and political development. He's the

4:12

author of two books, The

4:15

Two Faces of American Freedom,

4:17

and the book we're discussing this

4:19

series, The Constitutional Bind,

4:21

how Americans came to idolize

4:23

a document that fails them.

4:26

This is the second in a three part

4:28

series. The

4:44

US entry into World War

4:46

I in 1917 changed American

4:48

politics dramatically and definitely much

4:50

for the worse. But in

4:52

the years leading up to

4:54

the war, as we were

4:57

discussing in the prior episode,

4:59

there were powerful critiques, both

5:01

more radical critiques and more

5:03

mainstream critiques, of the US

5:05

Constitution and of the entire

5:08

American system. The

5:10

radical critiques came from groups

5:12

like the Socialist Party of

5:14

America, which itself had very

5:16

significantly left and right factions,

5:18

and also the very radical

5:20

industrial workers of the world,

5:22

or IWW. Meanwhile,

5:24

the mainstream critiques came

5:26

from the progressive

5:29

movement, itself a rather

5:31

heterogenous bunch. What

5:33

did various radical currents

5:35

from the Socialist Party to

5:37

the IWW propose and

5:39

how did those visions differ

5:41

from what mainstream progressives

5:43

were arguing for? So

5:46

there was a general climate

5:48

in the years leading up to

5:50

World War I of real

5:53

skepticism and critique from different reformist

5:55

movements about the constitutional system. And

5:58

this is the ideas that

6:00

were especially associated with somebody like

6:02

Charles Beard, but traveled pretty

6:04

broadly across these various spaces that

6:06

read the Constitution as a

6:08

counter -revolutionary document, as a containment

6:10

of the democratic energy that had

6:12

been unleashed in the 1770s,

6:15

1780s. So I want you to

6:17

notice something here up front,

6:19

which is even across radical spaces,

6:21

there's this distinction that's being

6:23

made between the declaration and

6:25

the Constitution. So the

6:27

Declaration is being claimed for

6:29

various types of even

6:31

revolutionary politics, but the

6:33

Constitution is being viewed as this

6:36

concrete instantiation for the reassertion

6:38

of forms of class hierarchy in

6:40

particular. And we can think

6:42

a little bit about why that

6:44

might be the case, that

6:47

the declaration isn't concretely embedded in

6:49

the set of institutional arrangements.

6:51

It's a way for radicals to

6:53

maintain continuity with particular types

6:55

of nationalist narratives, even if they're

6:57

explicitly internationalist. We can think

7:00

about the strengths of that as

7:02

political strategy, but also the

7:04

weaknesses and limitations, the inability even

7:06

among various radical groups to

7:08

sort of highlight the forms of

7:11

persistent indigenous suppression. and

7:13

expropriation that marks various elements of the

7:15

American experience, something for us to

7:17

contemplate. But if there

7:19

was this broad critique, There

7:21

was also really differences

7:23

in perspective about how

7:25

to pursue meaningful institutional

7:28

change. I'd say across

7:30

progressives and socialists that ended up

7:32

sort of aligning with the Socialist

7:34

Party of America, there was the

7:36

argument that the problem of the

7:38

constitutional system in the US was

7:40

at root, not one that was

7:42

just about a specific institution, let's

7:44

say the federal judiciary, but

7:46

a broader issue of

7:48

institutional design. So there was

7:50

a kind of broad

7:52

range agreement that as a

7:55

matter of how the

7:57

institutions were organized, they actually

7:59

produced a system that

8:01

undermined basic commitments to mass

8:03

democracy. And both progressives and

8:05

socialists are looking to Europe. They're

8:07

thinking about ways to create something that

8:09

looks much more like a parliamentary

8:11

system organized around proportional representation. They

8:14

see the American version

8:16

of judicial review as an

8:18

extreme assertion. of judicial

8:20

power in ways that contradicts

8:22

small d democracy. And

8:24

then they were also thinking not

8:27

just about the kind of institutions of

8:29

representative government, but also the difficulty

8:31

of amendment, so a more flexible amendment

8:33

process, how to produce various kinds

8:35

of change, and also the rights vision,

8:37

the fact that the U .S. has

8:39

a constitutional order that's built around

8:41

a very limited range of negative liberties

8:43

tied to property, a desire

8:45

to actually produce a system that

8:48

has something like much more expansive

8:50

socioeconomic rights. So these

8:52

are positions that in a

8:54

way connect progressives and socialists. But

8:57

I'd say what the

8:59

primary dividing point ends

9:01

up being over time

9:03

is that the socialists

9:05

develop a theory that's

9:07

deeply suspicious of thinking

9:09

about constitutional politics as

9:11

really a site for

9:13

a constitutional law, some

9:15

fundamental law that stands

9:18

above ordinary politics. This

9:20

is a matter of degree,

9:22

let's say, but they pressed

9:24

the hardest for producing a

9:26

political system in which you

9:28

have institutional arrangements that allow

9:30

organized bases, especially folks that

9:32

are connected to union movements,

9:34

to be able to negotiate

9:36

and renegotiate the terms of

9:38

politics. over time. To

9:41

see constitutional politics as not

9:43

something that's supervised by elites,

9:45

but as a site for

9:47

mass political agency through amendment,

9:50

through legislation that collapses the

9:52

divide substantially between higher and

9:54

ordinary law, and that protects

9:56

marginalized communities not through extreme

9:58

forms of checks and balances,

10:01

but through entrenched and powerful

10:03

intermediate groups like the party,

10:05

like the union. And

10:07

over time, what that

10:09

means is that while progressives,

10:12

at least initially, are

10:14

quite interested in formal

10:16

changes to the Constitution, they

10:19

increasingly shift toward

10:21

a defense instead of

10:23

rather than formally

10:25

changing the Constitution. pressing

10:27

for informal arrangements

10:29

that strengthen presidential power,

10:32

shifts through the

10:34

interpretation overseen by courts,

10:36

and the use of changes

10:39

in who serves on the

10:41

court, who you elect as

10:43

the president, as a way

10:45

of effectively producing constitutional reform

10:47

in a steady and moderated

10:50

way without necessarily having

10:52

mass transformations through the replacement

10:54

of one text with another. And

10:57

in a way, the Socialist

10:59

Party's position is no, it's

11:02

really important actually to formally

11:04

alter the text of the

11:06

Constitution because you want to

11:08

highlight the need for an

11:10

oppositional culture that understands the

11:12

existing arrangements as not the

11:15

fulfillment of popular sovereignty. And

11:17

also that there's a

11:19

worry among socialists that unless

11:22

you formally implement something

11:24

like parliamentary democratic practice and

11:26

simplified amendment processes that

11:28

allow mass publics to create

11:30

change through popular law, you

11:32

will effectively over time

11:35

give too much authority over

11:37

to the same range

11:39

of elites, politicians that are

11:41

elected as president and

11:43

judges that are insulated from.

11:45

popular decision -making. And

11:47

so the socialist argument is that

11:49

you need to pay attention to

11:51

the structure of the constitution because

11:53

that ends up shaping the possibility

11:55

of pursuing a whole range of

11:57

other alternatives that you can't distinguish

11:59

between what you might think of

12:01

as bread and butter issues of

12:03

the economy and these procedural questions

12:05

of democracy. But in pursuing

12:07

that, you have to have a much more

12:09

thoroughgoing commitment to the type

12:12

of democratic infrastructure that would

12:14

allow mobilized publics to intercede. And

12:16

then separately, there is, let's

12:18

say, a disagreement between

12:20

the SPA and then folks

12:23

that are really associated with

12:25

the IWW and various kinds

12:27

of syndicalist groups. So folks

12:29

in the IWW are also

12:31

deeply critical of the Constitution, but

12:33

are much more suspicious

12:36

of the electoralism among socialist

12:38

politicians. They're worried. that

12:40

the same kind of substitution of

12:42

interests that presidents and judges will

12:44

just sort of pursue their own

12:47

their own drives independent of what

12:49

the public wants will play out

12:51

if you have socialist politicians that

12:53

are too focused on election season

12:55

and they also think that ultimately

12:57

they're just deeply suspicious of like

13:00

the state as something that can

13:02

be fully corralled and that they'd

13:04

much rather have direct political authority

13:06

exercised at the union through like

13:08

workplace controls that end up shaping

13:11

the terms of collective life. And

13:13

so even if they're critical of

13:15

the constitution, they're more suspicious of

13:17

the reconstructionist agenda through formal constitutional

13:19

change that emerges out of the

13:21

SPA. And there was a lot

13:24

to be suspicious of in terms

13:26

of the SPA's right wing. Absolutely,

13:28

which is, I've

13:31

marked out three different positions.

13:33

Broadly speaking, progressive.

13:35

wants constitutional change, even substantial

13:37

constitutional change, but ultimately

13:39

is seeking it informally through

13:42

presidential power, arguments about

13:44

nationalism, a direct connection between

13:46

presidents and citizens, and

13:48

then, you know, judges in conversation

13:50

with presidents. Then you

13:52

have the socialist position, which is

13:54

a much more thoroughgoing democratization

13:56

of the institutions, a simplification of

13:58

the amendment process, a continual

14:00

re -engagement and renegotiation with political

14:02

life awareness. of the nationalist

14:04

sentiments that are coming out of

14:07

the progressives. And then you have

14:09

the syndicalist view, which is critical

14:11

of the constitution, but based

14:13

on a kind of anarchist sympathies, very

14:15

worried about what happens with the state

14:17

and the capacity of the state, even

14:19

if run by socialists, to end up

14:21

imposing new forms of domination. Within

14:24

these groups, there's still

14:26

a lot of variation. They're

14:28

progressives that call for a

14:30

new constitutional convention. They're

14:32

socialists, especially on the right wing,

14:34

that sound a lot more

14:36

like progressives, like, you know, especially

14:39

mayors of Wisconsin and the

14:41

folks that are associated with the

14:43

Wisconsin Socialist Party. that tend

14:45

to emphasize the importance of constitutional

14:47

interpretation, the fact that you

14:49

might not need to have this

14:51

like fundamental rupture, that you

14:53

should use national symbols, you should

14:55

meet the public where it

14:57

is, including when it comes to

14:59

like their own racist sentiments

15:01

and commitments. And so that there's

15:03

a spread. And then among

15:06

the IWW folks, there's similarly a

15:08

spread. So, you know, it's

15:10

not, it's not for nothing that

15:12

that Eugene Debs is involved

15:14

with the founding of the IWW

15:16

or that Big Bill Haywood

15:18

is part of the SPA and

15:20

that there are these like

15:22

synergistic alliances effectively. And

15:24

so that, you know, somebody like

15:26

Haywood would say that his vision

15:28

of the project of one big

15:30

union and of industrial unionism is

15:32

socialism with its like, with its

15:34

hard hat on something like that.

15:36

Socialism and its work clothes or

15:38

something. Yeah, exactly. Yeah, so there's

15:40

clear continuities, but there's nonetheless these

15:42

cleavages of perspective. Within

15:44

this, I think it's

15:47

just worth highlighting the very

15:49

different type of conversation

15:51

that's taking place. This is

15:53

a conversation that's about

15:55

what are the varieties of

15:57

constitutional democracy that would

15:59

be compatible ultimately with a

16:01

pretty profoundly changed political

16:03

economy. And for socialists and

16:05

folks in the IWW, the

16:08

goal is, you know, the

16:10

overcoming of capitalism. It's replacement

16:12

with a socialist economic system

16:14

that's predicated on the control

16:16

of workers over the conditions

16:18

of their own work life

16:20

that's organized around this idea

16:22

of a cooperative Commonwealth. And

16:25

in particular, a sense...

16:27

the current institutions of representation make

16:30

it very very difficult to

16:32

pursue these transformations to the economy.

16:34

That you have to have

16:36

an agenda that links the two

16:38

because without an agenda that

16:40

links the two you're effectively fighting

16:42

for the cooperative Commonwealth with

16:44

one hand tied behind your back.

16:46

Now where you go as

16:48

far as strategy to prioritize in

16:51

the here and now direct

16:53

action at the workplace or formal

16:55

changes to the constitution and

16:57

electoralism, that's where you start seeing

16:59

divergences between socialists and folks

17:01

in the IWW. The

17:03

years between 1913 and

17:05

1920 did witness a

17:07

lot of mainstream constitutional

17:09

reform. There were amendments

17:11

that allowed for the

17:14

direct election of senators

17:16

because recall that senators

17:18

were previously elected

17:20

by state legislators, women's

17:22

suffrage, alcohol prohibition, and

17:24

a federal income tax. All

17:27

of this is rather

17:29

substantial. But 15 states even

17:31

called for a straight -up

17:33

general constitutional convention. But

17:35

as you just indicated, nothing like

17:37

that ever happened. How, with the

17:39

U .S. entrance to the war, did

17:42

Wilson's repressive, nationalistic

17:45

presidentialism temporarily

17:47

resolve these constitutional crises that

17:49

had emerged, at least as

17:51

far as Wilson and his

17:53

friends were concerned. And

17:56

then how did

17:58

that provisional, rather reactionary

18:00

settlement transform the

18:02

broader politics around the

18:04

American constitutional order? So

18:07

I think it's really key

18:09

to start with the point that

18:11

you note, which is the

18:13

broader climate, the broader progressive climate

18:15

within which you can think of

18:17

the socialist party in particular

18:19

as perhaps the kind of radical

18:22

edge really emphasizing the need for

18:24

constitutional replacement effectively, was

18:26

one in which you were able

18:28

to use this amendment process, which

18:30

is notoriously, again, the hardest in

18:32

the world to implement to pursue

18:34

pretty profound changes on some critical

18:36

issues of the time and so

18:38

for constitutional amendments in a seven -year

18:41

period along with a variety of

18:43

other kinds of actions that are

18:45

taking place at the state level

18:47

so state constitutional arrangements that incorporate

18:49

things like initiative referenda that's pressing

18:51

for so little d democratic reforms

18:53

broad engagement with issues about socioeconomic

18:55

rights that should be built into

18:57

state constitution so that this is

18:59

an era of extensive constitutional experimentation

19:01

that's taking place at the state

19:04

level where you actually have much

19:06

more consistent success with

19:08

the broadly speaking progressive

19:10

and socialist vision and then

19:12

even success at the

19:14

federal level. And so

19:16

it tells us something

19:18

about the mass popular support

19:20

that existed precisely because

19:23

of the strength of all

19:25

of these intermediate institutions

19:27

that incorporated working class Americans.

19:30

into what we can think of

19:32

as like a left cultural world.

19:34

So whether it's the variety of

19:36

different unions across the ideological spectrum,

19:38

the forms of party organization, the

19:41

various other kinds of civic and

19:43

religious organizations. So you had an

19:45

entire infrastructure that sustained left politics

19:47

that was also part of making

19:49

arguments for constitutional change. There's newspapers

19:52

out of Kansas, like, you know,

19:54

the appeal to reason that are

19:56

writing articles about the problems of

19:58

the Constitution. There's a

20:00

plethora of journalistic and historical work

20:02

that's being done, making the argument

20:04

that the Constitution is undemocratic and

20:06

that the country needs pretty profound

20:09

forms of institutional renewal that goes

20:11

to the heart of how state

20:13

and economy have been organized, because

20:15

these conversations about the Constitution are

20:17

fundamentally conversations about first principle, how

20:19

to organize this political community. And

20:22

that's the nature of the conversation

20:24

in the U .S. on the eve

20:26

of World War I. And

20:28

what World War I does

20:31

is, in many ways, it

20:33

sort of fractures this discussion. Because

20:36

one of the things I think

20:38

that's key to highlight is that

20:40

many of the folks that are

20:42

participating in this discussion about the

20:44

need for constitutional change are themselves

20:46

elites. so that they're

20:48

Anglo -Americans, they're native

20:50

born, they come from particular kinds

20:52

of class backgrounds, they're

20:54

involved in reform movements, but

20:56

it's not just a politics

20:59

from below. Even somebody like

21:01

Woodrow Wilson, you know, had

21:03

written in his earlier years

21:05

about the need for constitutional

21:08

change. I mean, he'd called

21:10

in his own personal notebooks,

21:12

his own sort of private

21:14

diaries, in the 1870s

21:16

as a young student, he'd called

21:18

the Constitution something that created

21:20

a miserable delusion of a republic

21:22

because of the fact that

21:24

it didn't implement these various kinds

21:26

of democratic, little

21:29

de -democratic initiatives. And

21:31

so the thing that

21:33

World War I does is

21:36

it gives, interestingly, a

21:38

set of principles for

21:41

the folks that, let's say, are

21:43

committed to defending the Constitution just

21:45

as it is. So like a

21:47

business elite. We've reached a point

21:49

in American history where really it's

21:51

business elites that are the single

21:54

entity that are strongly committed to

21:56

keeping the constitutional arrangements just as

21:58

they are. But the fact

22:00

that now the country is mobilizing

22:02

for war, this war is viewed as

22:04

a kind of existential confrontation between

22:06

American values and values that you see

22:09

in Europe against. the backdrop of

22:11

a huge amount of opposition, it

22:13

allows business elites to be able

22:15

to tap into a set of

22:17

principles that are tied to constitutionalism.

22:19

It's that idea that had been

22:22

percolating, that had had this dress

22:24

rehearsal in places like the Philippines

22:26

of the Cretal Constitution is what

22:28

justifies American power, that's now given

22:30

a concrete instantiation through the war.

22:32

And then at the same time,

22:35

this focus on the

22:37

constitution not only is

22:39

able to give business elites a

22:41

kind of grounding for their own.

22:43

objectives, it's able to

22:45

tie as well to folks

22:47

that are backing military preparedness. So

22:50

it had been the case that you'd

22:52

had arguments proceeding about the need for

22:54

a standing army, for military preparedness, for

22:57

national security infrastructure, but that was also

22:59

viewed in various ways as perhaps un

23:01

-American, that you needed to instead

23:03

have this kind of isolationist project

23:05

that focused on demographic transformation domestically within

23:07

the country. But the

23:09

war effort Energizes

23:11

military preparedness arguments and the connection

23:13

of the war effort to

23:16

the Constitution Gives a justification for

23:18

the national security apparatus and

23:20

so now all of a sudden

23:22

you have these three different

23:24

elements you have folks that are

23:26

talking about the genius of

23:28

the Constitution business elites that are

23:30

connected to military preparedness groups

23:33

who are then also using the

23:35

constitution and constitution support to

23:37

back their own positions. And

23:39

in this context, it taps

23:41

into really an extensive base. And

23:44

this is not a broad

23:46

base because there's a lot of

23:48

internal opposition to the war

23:50

effort, but especially nativist groups, folks

23:53

that are, let's say, Anglo -American

23:55

settlers that are wary of

23:57

the broad sort of immigration transformations

23:59

and demographics. The second Ku

24:02

Klux Klan, the American Legion. Totally.

24:04

All of these groups, they're

24:06

viewing this moment of

24:09

political conflict, including around the

24:11

Constitution, as one

24:13

of chaos domestically, and

24:15

they see the war effort.

24:17

as a way of solidifying

24:19

a set of principles to

24:21

defend that's deeply kind of

24:23

traditionalist about business interests, the state

24:25

as it currently exists, and

24:28

the need for the US

24:30

to assert robust power. And

24:32

it's why it's during this period

24:34

that you for the first

24:36

time have national mobilizations around

24:38

constitutional support. It's organizations like

24:40

the National Security League that

24:42

emerged during this era that

24:44

end up pressing For

24:46

the celebration of Constitution Day, Constitution

24:48

Day becomes an event that's

24:50

celebrated annually beginning really in World

24:52

War I. You have groups

24:54

like the Klan and notions of

24:56

100 % Americanism that are starting

24:58

to rally around the Constitution.

25:00

And then you have various veterans

25:02

groups and groups that are

25:04

sort of broadly associated with the

25:06

war effort, like the American

25:08

Protective League, that are themselves pressing

25:10

aggressively for on the one

25:12

hand, constitutional rededication on

25:14

terms of the existing state

25:16

apparatus, the economy and the

25:18

state exactly as they are,

25:21

alongside a strong commitment to

25:23

the war. And what

25:25

this does is

25:27

it transforms steadily the

25:29

perception of both

25:31

criticism of the Constitution

25:34

and also support

25:36

for socialism, where both

25:38

in various ways become tarred

25:40

with a kind of anti

25:42

-Americanism. where in the years

25:44

before the war, being a

25:46

socialist in a sense is

25:48

absolutely part of the broader

25:50

American Republican heritage, somebody like

25:52

Debs. But during the war,

25:54

because of socialist opposition to the

25:56

war effort, there's a way in

25:59

which socialist commitments, and so capitalism

26:01

becomes increasingly associated with American identity,

26:03

socialism is read out of the

26:05

appropriate range of acceptable opinion for

26:07

chunks of the political lead and

26:09

the public more generally, and then

26:12

at the same time, criticism

26:14

of the Constitution starts being

26:16

read as anti -American is

26:18

something that's associated with immigrant

26:20

pockets in particular. And here,

26:23

the transformation of Wilson is

26:25

really telling. Because in

26:27

the 1870s, Wilson is

26:29

arguing that the Constitution is

26:31

fundamentally broken. By the

26:33

time you get to 1917, he's

26:35

strongly backing congressional bills like

26:37

the Sedition Act, various

26:39

kinds of bills that criminalize

26:42

speech, including speech that

26:44

would critique the Constitution. And

26:46

so the Constitution now becomes

26:48

this symbol. the state apparatus and

26:50

whatever existing disagreements might have

26:52

taken place about the organization of

26:54

economy and state how the

26:56

institutions of government should be framed

26:58

what Wilson is effectively standing

27:00

for during the wartime is that

27:02

all of those first -order questions

27:05

have to be suppressed and

27:07

that to back the Constitution is

27:09

really not to back a

27:11

project of critical dissent and engagement

27:13

but to back the

27:15

constitutional state exactly as it is

27:17

from all perceived enemies, including

27:19

the sources of dissent domestically, people

27:21

like Debs, people like Crystal

27:23

Eastman, that are making arguments for

27:25

free speech itself. And Debs

27:27

is imprisoned for just simply criticizing

27:29

the war. Absolutely. So he's

27:32

imprisoned effectively on seditious speech grounds

27:34

for his opposition to the

27:36

war. And it's, in fact, socialists

27:38

and reformers that are saying,

27:40

well, if you have this text,

27:42

you should support, live up

27:44

to the principles, the civil libertarian

27:46

principles that exist within the

27:48

document. And it's the state that's

27:50

saying, no, veneration for

27:52

the Constitution. in a

27:55

way that's built on

27:57

ideological uniformity and really top

27:59

-down deference requires the suppression

28:01

of civil libertarian commitments. And

28:04

this overwhelmingly repressive crackdown

28:06

marks the first red scare.

28:08

It's a crackdown on

28:10

radicals like Debs who are

28:13

imprisoned simply for speaking

28:15

out against the war, a

28:17

crackdown on immigrant radicals

28:19

who are deported in large

28:21

Numbers for speaking out

28:23

against the war speaking out

28:26

against the American system

28:28

and this all only intensifies

28:30

after the war has

28:32

concluded why So I think

28:34

one of the things

28:36

that's worth highlighting is that

28:39

this is a period

28:41

of intense social conflict within

28:43

the US so this

28:45

period between especially late 1917

28:47

1919 that

28:49

the idea that the country might

28:51

actually experience something like social

28:53

revolution is something that's taken very,

28:55

very seriously across the ideological

28:58

spectrum. And it makes sense. There's

29:00

the example of the Russian

29:02

revolution that's out there. There's the

29:04

example of the Mexican revolution

29:06

and a fundamentally different constitutional document.

29:08

There's the experience of the

29:10

general strikes in major American cities.

29:13

that 1918 -1919 is

29:15

a high tide for

29:17

labor activism, strike

29:19

actions, and various kinds

29:21

of radical political organizing. And

29:24

what this does is it

29:26

both generates intense forms of

29:28

repression that's brought to bear

29:30

against left -wing activists and

29:32

repression that's justified precisely on

29:34

the grounds that you're preserving

29:36

or protecting the constitutional state.

29:39

from attack, an American way

29:41

of life. And so drawing

29:43

on the reserves, the fairly

29:45

deep reserves that existed for

29:47

constitutional support as a way

29:49

of justifying these forms of

29:51

action, but then also drawing

29:53

on the fact that you

29:56

have a really divided public

29:58

and you have substantial parts

30:00

of the public. the kind

30:02

of Anglo -American settler public that's

30:04

wary about the type of

30:06

social crisis and disorder that

30:08

might take place, that's deeply

30:10

xenophobic against folks that are

30:12

coming from Eastern and Southern

30:15

Europe, that also maintains

30:17

a commitment to various kinds of

30:19

white supremacist politics, and so that's

30:21

feeding organizations like the Klan, which

30:23

is a mass membership organization of

30:25

the North and the West, in

30:28

the 1920s. And World

30:30

War I is followed by

30:32

horrific spasm around the country

30:34

of violence against black people.

30:36

Absolutely intense forms of

30:38

physical violence and, you know,

30:40

white violence against African Americans. And

30:43

what this does in

30:46

the 1920s is it means

30:48

that it's not that

30:50

You have uniformity, ideological

30:52

uniformity around the genius of

30:54

the Constitution or commitment

30:57

to these Constitution Day events.

31:00

But you have deep internal

31:02

political cleavages in a

31:04

setting in which there's now

31:06

a national base connected

31:08

in both parties, the Democratic

31:10

and the Republican Party, to

31:13

a business and racial elite. that

31:15

is willing to use the instruments

31:18

of the state to suppress what are

31:20

viewed as threats to the existing

31:22

social order. And that

31:24

has an absolutely destructive

31:26

effect on left institutions. It

31:28

produces the collapse in various ways

31:30

of the IWW. It

31:33

suppresses the willingness of mass

31:35

publics to commit to supporting You

31:37

know, left -wing newspapers, organizations, so

31:39

you can just take something

31:42

like The Messenger, A. Philip Randolph's

31:44

socialist black newspaper that had

31:46

been tied during this period to

31:48

the Socialist Party. The

31:50

number of people that subscribed

31:52

to it, plummet over the

31:54

course of the 1920s until

31:56

it finally like goes out

31:58

of business, even NAAC membership

32:00

drops. So this

32:02

is a period of suppression

32:04

that really undermines the organizing.

32:06

Yet at the same time,

32:09

I think one of the

32:11

things that's worth noting is

32:13

it also builds subterraneously certain

32:15

kinds of radical politics that

32:17

persists during this era. Precisely

32:20

because of the fact that you have

32:22

this intense white violence against African Americans,

32:24

it's harder to hold on. to

32:26

that civil war creedal story of

32:28

the U .S. as steadily overcoming

32:30

whatever kind of racist ambitions might

32:32

have existed internally. And so it

32:34

produces, it's the condition that produces

32:36

the base, the black base for

32:38

the Communist Party, for instance, in

32:40

the South. It produces far

32:42

greater forms of internationalism

32:45

within black politics. So this

32:47

is the era of

32:49

the rise of Garveyite politics,

32:51

various other forms of

32:53

kind of anti -colonial internationalism

32:55

that become a mainstay of

32:57

black politics. And it

32:59

also means that you still

33:01

have strong traditions of

33:04

labor activism, socialist activism. But

33:06

within white pockets, there's

33:08

this interesting ambiguity that emerges,

33:10

that Crystal Eastman, great

33:12

socialist feminist, captures. So

33:14

Eastman is a fellow traveler

33:17

within socialist circles, within

33:19

anti -imperial, anti -racist circles. She's

33:21

one of the authors of

33:24

the Equal Rights Amendment. in the

33:26

1920s. She's one of the

33:28

founders of the ACLU as

33:30

an anti -World War I activity

33:32

and exercise. Her

33:34

view about in this climate

33:36

of repression how the

33:38

left should operate is that

33:40

the left should negotiate

33:43

a rejection of the constitutional

33:45

system of the existing

33:47

operation of state and economy

33:49

while using the legal

33:51

tools that exist to press

33:53

through litigation, through argument,

33:55

for rights against those that

33:57

are most marginalized. And

33:59

when the legal system succeeds, then

34:01

you provide a reprieve for workers, for

34:03

black people against the violence of

34:06

the state and of business and racial

34:08

elites. But when the

34:10

legal system fails, it also

34:12

serves the politically educated function of

34:14

highlighting how that the only way to

34:16

get true commitments to civil rights or

34:18

civil liberties will be through a kind

34:20

of transformation of the system. This is

34:22

an argument that we're going to see

34:24

replicated across the 20th century. But

34:27

even she notes something

34:29

which is a growing

34:31

hesitance of labor activists,

34:34

socialist politicians, to

34:36

make the argument about the

34:38

need to transform or overcome.

34:41

So a commitment to using the

34:43

tools of the legal system to

34:45

say that rights are being violated,

34:47

that labor should have the ability

34:49

to boycott or strike, or that

34:51

black people should have protections against

34:53

white violence or against segregation. But

34:56

an unwillingness to then

34:58

say when it's failed,

35:00

that's a function. of

35:02

the failures endemic to the

35:04

institution and instead a tendency

35:06

to collapse effectively into an

35:08

argument about how the state

35:10

is not living up to

35:12

its own values. In other

35:14

words, a kind of constitutionally

35:16

venerative sheen that starts to

35:18

take hold even among activists

35:21

that are themselves quite skeptical.

35:23

So she says famously at

35:25

the 1920 Socialist Party Convention

35:27

that during World War I,

35:29

in some ways, the most

35:31

radical thing that a socialist

35:33

can do was to say

35:35

that Wilson, Palmer, and the

35:37

state had to live up

35:39

to its constitutional principles and

35:41

that she worried that with

35:43

the war over, this is

35:45

a kind of premonition about

35:47

where American politics went in

35:49

the 1920s, with the war

35:51

over, that these socialists will

35:53

come to imagine that simply

35:56

by living up to the

35:58

constitution, you'll get the social

36:00

revolution. And that is an

36:02

inherent impossibility. Revealingly,

36:05

the exaltation of the Supreme

36:07

Court was also part of

36:09

this nationalistic reaction. It was

36:12

during the 20s that plans

36:14

to construct the grand building

36:16

that the court and habits

36:18

today were made. And the

36:20

design, I learned from your

36:22

book, was inspired by the

36:24

Roman architectural revival of Mussolini's

36:26

Italy. So, one thing

36:28

that I think is really important

36:31

to highlight is that even though

36:33

it spreads across both political parties,

36:36

I think we can

36:38

sort of identify the

36:40

politics of constitutional veneration

36:42

and this extreme defense

36:44

of the constitutional state. Defending

36:48

the Constitution actually means

36:50

compromising, rejecting, limiting civil liberties.

36:52

So the constitutional venerators

36:54

are the very same people

36:56

that are imprisoning folks

36:59

like Debs for speech crimes.

37:02

This is, you know, broadly

37:04

speaking, the culture of

37:06

the right. And in

37:08

the teens, the 20s, and the 30s,

37:10

and the early part of the decade, the

37:13

right is really able

37:15

to succeed in pursuing

37:17

a cultural project around

37:20

constitutional veneration that's deeply

37:22

reactionary and restorative. We

37:24

can see how it plays out in

37:26

a bunch of different settings. I think the

37:28

most spectacular example of it is what

37:31

you just described, which is today's Supreme Court.

37:33

Today's Supreme Court, if you

37:35

go to D .C., was designed

37:37

and built during this era.

37:39

If you just look at

37:41

the court, you're like, this

37:44

thing is a massive and imposing

37:46

architectural entity. There's nothing about

37:48

the experience of looking at

37:50

it or being in it

37:52

that feels democratic, that's part

37:54

of a collective culture of

37:56

ruling and being ruled in

37:58

turn. And that's

38:00

by conscious design. So

38:02

the architect of the court

38:04

is a person named Cass Gilbert,

38:06

who had participated in sort

38:09

of various kinds of propaganda efforts

38:11

during World War I to

38:13

support the war. that is strongly

38:15

concerned with critiques of the

38:17

Constitution, with socialist politics, and that

38:20

is very taken with Mussolini.

38:22

In fact, he goes to

38:24

Italy. He shows the

38:26

drawings to the folks within

38:28

the Italian government that he

38:30

wants to get the marble

38:32

specifically from Italy. And

38:34

the thought is what the

38:36

architectural design and the building

38:38

is supposed to do is

38:41

impose awe on the citizen.

38:43

The worry is that the

38:45

court is itself facing a

38:47

legitimacy crisis precisely because of

38:49

its attachments still to business

38:51

and that the way to

38:53

overcome partially this legitimacy crisis

38:55

is to have an architectural

38:57

space that underscores the near

38:59

godly quality of the justices

39:01

themselves. And I think

39:03

it's something for us to

39:05

reflect on, which is we're

39:07

still living with the cultural

39:09

products of an era. in

39:12

which the profound organizing of

39:14

how one experiences the Supreme

39:16

Court is built on an

39:18

authoritarian frame. That's broadly

39:20

speaking part of the

39:22

culture that marks this period.

39:24

It's the 20s and

39:26

30s where you have the

39:28

proliferation of these Constitution

39:30

Day celebrations. You

39:32

have the spread of constitutional instruction

39:34

as something that's mandated in

39:36

public. schools, so it goes to

39:38

43 states by the time

39:40

you get to 1941. You

39:42

have oratorical competitions in the 20s about

39:44

the genius of the Constitution, a million

39:46

and a half high school students that

39:49

are participating in this. And

39:51

then in the 30s too,

39:53

you start seeing the

39:55

requirement of constitutional law as

39:57

a course in law

39:59

schools. So this is a

40:01

kind of transformation as well of the

40:03

educational infrastructure. I want to

40:05

be clear about this. There had been

40:07

constitutional instruction in the 19th century

40:09

in universities and history departments. So

40:12

it's not like it didn't exist previously. And

40:14

if you just look at the 19th century story

40:16

and you look at the textbooks and the number

40:18

of editions published in specific textbooks, it can

40:20

seem like, well, there was a lot. But

40:22

if you zoom out, let's say, from that

40:24

set of trees, to

40:27

the broader forest, there is a

40:29

profound transformation that's taking place

40:31

in the first half of the

40:33

20th century in terms of

40:35

just the sheer scope of a

40:37

focus on general constitutional instruction

40:40

that even at law schools, it

40:42

had long been the case

40:44

in the 19th century, late 19th

40:46

or early 20th century that

40:48

really law schools instruct in private

40:50

law subjects like torts, property

40:53

contracts, and constitutional law is really

40:55

something that's left. for political

40:57

science and history departments. And that

40:59

starts to change too. And

41:02

the focus especially on

41:04

this broader vision of

41:06

constitutional education and especially

41:08

popular constitutional education pursued

41:10

by business and governmental

41:12

elites is again, uniformity

41:15

of instruction. Not critique,

41:17

not critical evaluation of the

41:20

text of judicial opinions,

41:22

but an almost rote or

41:24

mechanical assertion of

41:26

the genius of the Supreme Court, the

41:28

genius of checks and balances, the

41:31

perfection of the constitutional

41:33

system. And that's

41:35

going hand in hand with what

41:37

we're seeing within right -wing civil society

41:39

associations like the Klan, where the

41:41

Klan makes one of its symbols

41:43

of Klancraft, the Constitution,

41:46

which is associated with

41:48

the flag and is supposed

41:50

to stand for the

41:52

principles of what amounts to

41:55

Anglo -American ethno. ethno -nationalism.

41:57

So there's this entire cultural

41:59

context also shaping

42:01

the politics of the 20s and that's

42:03

becoming part of the drinking water

42:05

of what new generations of Americans just

42:07

come to understand as like the

42:10

American baseline is promoted by, let's say,

42:12

the received culture of the society. We

42:15

should also emphasize that

42:17

the teens and 20s

42:19

are the high point

42:21

for restrictionist exclusionary anti

42:23

-immigrant legislation that cuts

42:25

off immigration from Asia

42:27

basically entirely and all

42:29

but cuts off immigration

42:31

from southern and eastern

42:33

Europe. Also a period

42:35

when the English language

42:37

becomes so closely identified

42:39

with 100 % Americanism. And

42:41

so in the last

42:44

episode, we discussed this

42:46

sort of budding universalist,

42:48

creedal idea that legitimated

42:50

US imperialism abroad. But

42:52

here we see that

42:54

whipsawing back into this

42:56

idea that there is

42:58

something ethnoculturally particular about

43:00

Anglo -Saxon America and

43:02

the capacity of 100 %

43:04

Americans to engage in

43:06

self -rule. That's particular

43:08

to the exceptional genius

43:10

of American democracy and

43:13

the constitutional system. This

43:15

is the era in many ways

43:17

that I think we should locate

43:19

as a kind of origin story

43:21

for let's say the attacks on

43:23

CRT or even quote unquote DEI

43:25

that we see in the present.

43:29

So in recent years you've had

43:31

various states that have passed these

43:33

laws limiting the ways in which

43:35

you can engage in instruction about

43:37

the American past. And I

43:39

think one of the things

43:41

that's really complicated and confusing

43:43

for Americans that are left

43:45

of center or liberals is

43:47

that so much of these

43:49

laws are framed in the

43:51

language you would think of

43:53

kind of universalism, universal inclusion.

43:55

They have a kind of

43:57

civil rights language, which they

43:59

say that the problem of

44:01

teaching quote unquote divisive anti

44:04

-American ideologies is that they

44:06

reject a kind of general

44:08

universal principle of color blindness.

44:10

They present the U .S. as

44:12

not committed to longstanding civil

44:14

rights agendas. And

44:16

so it's using the language

44:18

of universal inclusion as an

44:20

argument for why actually telling

44:22

the history of the American

44:24

past and highlighting past and

44:26

ongoing forms of racism should

44:28

be treated as a suspect. And

44:31

that's a kind of

44:33

kernel that we start seeing

44:35

during this period, which

44:37

is we tend to divide

44:40

between civic nationalism and

44:42

ethno -nationalism. So civic nationalism

44:44

or accounts of membership that

44:46

are inclusive of all.

44:48

Ethno -nationalism. or accounts of

44:50

membership that focus on, you

44:52

know, organic ties to

44:55

particular ethno -religious groups. You

44:57

could counterpose Obama's vision for

44:59

a composite America versus

45:01

Trump's most kind of white

45:03

ethno -nationalist edges. Yeah,

45:06

exactly. But the thing

45:08

that happens during this period, and

45:10

this is one of the tools of

45:12

the Constitution and its flexibility, for

45:15

the right is an

45:17

interesting combination of both. Where

45:19

the idea of creed and constitution,

45:21

their linkage is central to the war

45:23

effort, that the reason why the

45:25

U .S. is special is the place

45:28

that the Enlightenment values came down to

45:30

earth. It's expressed through the declarations,

45:32

given concrete teeth in the Constitution. The

45:34

U .S. stands for the interests of

45:36

all. It's committed to the equal

45:38

rights of all peoples. But

45:40

it's not for nothing again

45:43

that it's Wilson that's the

45:45

embodiment of these ideas and

45:47

that they start percolating across

45:49

the political elite because the

45:51

claim is also that the

45:53

reason why it touched down

45:56

in the U .S. is

45:58

because of the cultural specificity

46:00

of Anglo Protestant, even Anglo -Saxon

46:02

American settlers, that there's something

46:04

special about their culture that

46:06

actually promotes enlightenment values and

46:08

that the problem in the

46:11

country in the teens and

46:13

the 20s with immigrant politics,

46:15

with black politics, with labor

46:17

activism, is that

46:19

these universal values that

46:21

are distinctly tied to

46:24

the Anglo -Saxon experience are

46:26

now essentially under assault

46:28

from various communities that

46:30

are not culturally attuned.

46:33

And so that the only way abroad,

46:35

for instance, for American values to

46:37

be able to dominate is for the

46:39

U .S. to essentially enjoy a kind

46:41

of hierarchy where other societies that

46:43

are less developed are in a two

46:45

-layer relationship with the country. And then

46:47

domestically, this actually requires a

46:49

huge amount of suppression of external groups

46:51

that are viewed as fundamentally un -American.

46:53

So it goes hand in hand.

46:55

The very same people that are pressing

46:58

For this combined account of ethno

47:00

and civic nationalism, they're also

47:02

making arguments about nativism and the

47:04

need to restrict entry from

47:07

other parts of the world. So

47:09

you get the National Origins

47:11

Act from 1924. They're making arguments

47:13

about English -only instruction in schools

47:15

because German or other kinds

47:17

of instruction undermines an inculcation in

47:19

American values. And then they're

47:21

looking at the types of constitutional

47:23

experiments that are taking place

47:25

elsewhere. So again, Not

47:27

just Russia, not just

47:29

even Weimar Germany and its

47:31

constitutional experiments, but Mexico.

47:33

Mexico is a neighbor that's

47:35

engaged in an extensive

47:37

experimentation with building in socioeconomic

47:39

rights into a new

47:41

constitutional order and even that

47:43

is viewed as a

47:45

kind of threatening example of

47:47

un -American values because of

47:49

quote -unquote ethno -racial immaturity

47:51

that could end up undermining

47:53

the national project. And

47:55

so you even have, during

47:57

this period in the 20s,

47:59

laws that have more than

48:01

just a rhyme in common

48:04

with what we'll see 100

48:06

years later. Out of Wisconsin,

48:08

you have laws that limit

48:10

the teaching of particular kind

48:12

of textbooks, but then give

48:14

parents the ability to sue.

48:16

public school educators for the promotion

48:18

of un -American ideas within the

48:21

classroom in a way that

48:23

almost directly replicates the kinds of

48:25

laws that are emerging a

48:27

hundred years later. And so that

48:29

there's a long tradition, a

48:31

through line of these policies on

48:33

the right that use the

48:35

language of civic nationalism to entrench

48:37

or sustain ethno -nationalist views. In

48:39

fact, I'd say in the

48:41

north and the west, it's really

48:43

that becomes the dominant language

48:45

of white supremacy in the country.

48:49

The Communist Party USA was

48:51

formed in 1919 amid World

48:53

War I and in the

48:55

wake of the Bolshevik Revolution.

48:57

It was formed in part

48:59

by a split by the

49:01

radical anti -war left wing of

49:04

the Socialist Party USA. How

49:06

did the politics of the Communist

49:08

project relate to the American system

49:11

and the ideologies that upheld the

49:13

American system? throughout the 1920s and

49:15

then 30s, because on the one

49:17

hand, the CPUSA promoted

49:19

forms of internationalist solidarity that were

49:21

fundamentally incompatible with American nationalism

49:23

or nationalism of any sort. But

49:25

then by the mid 1930s

49:27

amid the New Deal, and we're

49:30

going to talk about the

49:32

New Deal a lot in a

49:34

few minutes, by

49:36

then the party line was

49:38

that, quote, Communism

49:40

is 20th century

49:42

Americanism. How did

49:44

the CPUSA approach the American

49:46

system and Americanism as it

49:48

was pushed and pulled by

49:51

by changing domestic political situations

49:53

alongside the external dictates of

49:55

the common turn? I

49:57

think it's actually valuable to

49:59

put the story of

50:01

the Communist Party in conversation

50:03

initially. with the

50:05

cleavages within the Socialist Party

50:07

from the years before World

50:09

War I in this way,

50:11

which is socialist party politicians,

50:13

especially the left wing or,

50:15

you know, folks outside of,

50:17

let's say, the right of

50:19

the party, committed to internationalism, so

50:22

are suspicious of the ways

50:24

in which national identities and

50:26

forms of patriotism actually break

50:29

down class. consciousness and class

50:31

solidarities that should broadly be

50:33

thought of as transcending the

50:35

national boundary. It's one

50:37

of the places the Socialist

50:39

Party forced strong commitments to

50:41

anti -racism. There's a reason

50:43

why you have people like

50:45

Hubert Harrison or A. Philip

50:47

Randolph that end up becoming

50:49

connected to the Socialist Party. But

50:52

at the same time, there's

50:54

this very specific kind of

50:56

development or tension, which is

50:58

the country is a majority

51:00

white society, and it's a majority

51:02

white settler society. And

51:05

there's always this issue about

51:07

how is it that you build

51:09

majority support in that context,

51:11

especially in a setting in which

51:13

you have the mass disenfranchisement of

51:15

black people, an intense violent suppression

51:17

of black people, as well as

51:19

real persistent traditions and cultures of

51:22

white supremacy, including, frankly, among some

51:24

of the leaders of the Socialist

51:26

Party. This

51:28

ends up producing kind of

51:30

real internal tensions where one of

51:33

the great failures of the

51:35

Socialist Party was that leadership increasingly

51:37

argued that, well, you kind

51:39

of have to meet white people

51:41

where they are. And

51:43

that requires, for instance, emphasizing

51:46

class in a way that

51:48

effectively de -emphasizes race or

51:50

just treats race as part

51:53

of a class story. and

51:55

it also means at

51:57

its worst, not pushing back.

51:59

against segregated practices among

52:02

socialists in the South, attempting

52:04

to tell the story, for

52:06

instance, of the authoritarianism of

52:08

the Constitution through an explicitly

52:10

class veil that doesn't emphasize

52:12

how slavery is not just

52:15

a system of feudal elite.

52:17

Slavery is a system that's

52:19

organized around a particular brand

52:21

of racial authoritarianism. This is

52:23

the argument that Hubert Harrison

52:25

is making that actually to

52:27

succeed in organizing a

52:29

working class, it must be

52:31

multiracial because the problem of

52:33

the proletariat in the U

52:35

.S. is one that necessarily

52:37

incorporates the particular conditions of

52:39

industrialized work on the farm

52:42

and the factory that black

52:44

people experience. And so

52:46

all of these are pre

52:48

-existing issues that American left activists

52:50

had faced. And I just

52:52

want to emphasize, socialist

52:54

congressmen, Victor Burger, he was a

52:56

straight -up racist. Yeah. So you

52:58

have people like Burger that

53:00

are, you know, straight -up committed

53:02

to versions of what amount to

53:04

biological racism. Then you have,

53:07

on the other hand, folks like

53:09

Debs. So Debs is

53:11

somebody that is absolutely committed to

53:13

racial equality. He's committed to

53:15

internationalism. But at the same

53:17

time, he's unable to

53:19

articulate the specificity of what today

53:21

we would call racial capitalism

53:23

within the terms of the American

53:25

capitalist order, that the US

53:27

capitalist system is not just like

53:29

any other kind of capitalist

53:32

entity that you'd see in Europe,

53:34

but is the product of

53:36

the dispossession of native peoples and

53:38

the enslavement of black peoples

53:40

to engage in coerced labor. And

53:42

it's that intersection that creates

53:44

very specific kinds of racial dynamics.

53:47

in the structure of American capitalist politics. Now

53:49

this is something that Hubert Harrison, who

53:51

had been a fellow traveler with

53:53

the Socialist Party, ends up becoming connected

53:55

to the Garveyites, is a significant

53:57

public order and voice out of Harlem

54:00

in the teens and twenties as

54:02

an internationalist. He's making these points, but

54:04

effectively they're kind of falling on

54:06

deaf ears within the party and the

54:08

party is unable to essentially

54:10

come to grips with the racial dynamics

54:12

of the society as a way of

54:14

building a genuinely transformative majority. And many

54:16

of these problems play out again with

54:18

the communists. They play out

54:20

in different ways because the

54:22

thing that the Communist Party

54:24

does initially, and this is

54:26

wonderful work, seminal classic work

54:29

by Robin Kelly, Hammer and

54:31

Ho, is that the

54:33

party unlike the socialists from

54:35

the years before World War

54:37

I is willing to essentially

54:39

mobilize a black base in

54:41

the south and to give

54:43

leadership authority over to black

54:45

Americans when it comes to

54:47

the issue of mobilization and

54:50

also pretty significant forms of

54:52

policy decision -making. And

54:54

it's the reason why for

54:56

periods in the 20s and

54:58

early 30s, Kelly highlights how

55:00

actually the Communist Party in

55:02

various ways vied with the

55:04

NAACP for dominance within black

55:06

politics, especially in the South.

55:08

And it's highlighted symbolically by

55:10

the willingness of the party,

55:12

for instance, to represent, you

55:14

know, folks that were falsely

55:16

accused of rape in the,

55:18

like the. tragic story of

55:20

the Scotsboro boys, but like

55:22

to actually go to the

55:24

hardest questions when it comes

55:26

to issues of civil rights.

55:28

It produces these really interesting

55:30

moments of kind of black

55:32

intellectual argument within the terms

55:34

of the Communist Party, and

55:37

here I think we can

55:39

think of somebody like Harry

55:41

Haywood, black communist that develops

55:43

some of the most interesting

55:45

versions of the black belt

55:47

thesis. So you

55:49

have a position coming

55:51

out of the Soviet

55:53

Union about treating various

55:56

ethno -national communities as worthy

55:58

of self -determination and

56:00

so pursuing a vision

56:02

of like independent Soviet

56:04

republics, for instance, for

56:07

Lithuania, you know, other

56:09

national communities. And

56:11

we can think a little bit about these

56:13

commitments in theory and in practice, of

56:15

course. But then, top down, making

56:17

this argument that this is the appropriate

56:19

way to think about the black position in

56:21

the US, that the black position is

56:23

anti -colonial just like all these others, so

56:26

a self -determination project. There

56:28

is a fair amount of

56:30

hesitance from white and black Communist

56:32

Party members in the US

56:34

to this idea because of the

56:36

sense that maybe if the

56:38

colonial analogy might make some sense,

56:40

it's not a perfect fit. But

56:43

nonetheless, these really striking black

56:45

developments of taking the colonial

56:47

analogy and then working through

56:50

its intricacies in an American

56:52

setting, where it's not quite

56:54

the case that black people

56:56

form a separate nation like

56:58

India vis -a -vis the British

57:00

Empire, but it is

57:02

the case that black

57:04

people experience a specific kind

57:07

of colonial relationship tied precisely

57:09

to what today we would

57:11

call settler colonialism, but that

57:13

links black, you know,

57:15

coerced labor to indigenous dispossession. What

57:18

somebody like Haywood starts to

57:20

argue is that the best way

57:22

to actually transform the conditions

57:24

of life in the South, this

57:27

is a kind of recovery

57:29

of that notion of jubilee from

57:31

black rural workers after the

57:33

Civil War. is to have meaningful

57:35

sovereignty over the land. But

57:38

you're only gonna get this

57:40

meaningful sovereignty over the land

57:42

if they're transformations to the

57:44

institutions of government. And so

57:46

he calls for a black

57:49

belt that spans Virginia to

57:51

Texas that breaks up the

57:53

unit of the state. He

57:55

sees the state as one

57:57

of like the central mechanisms

58:00

for entrenching forms of white supremacy. And

58:02

so he calls for a breakup of

58:04

the unit of the state. into

58:06

different political and administrative units

58:08

that ensure that you have

58:10

white, poor, and black Americans

58:13

that it can exercise meaningful

58:15

majority rule and through exercising

58:17

meaningful majority rule at the

58:19

state level can transform the

58:21

conditions of national politics and

58:23

produce the terms by which

58:25

you can have meaningful redistribution

58:27

and transformation of the land

58:29

base. These are

58:31

really interesting, creative, constitutional

58:33

ideas that are percolating from

58:36

black intellectuals at this time that

58:38

are never taught, by the way,

58:41

in contemporary debates, either about constitutional history

58:43

within the legal scholarship or about constitutional

58:45

interpretation, but in many ways are just

58:47

like more relevant for how we should

58:49

be thinking about things now. So

58:52

this is a kind of

58:54

really remarkable culture, but then,

58:56

of course, especially with the New

58:58

Deal, there's this big

59:00

issue that comes to the

59:02

fore, which is, How

59:04

do you ensure that this

59:06

party that has a black

59:09

base in the south as

59:11

well as working class immigrant

59:13

base in the north actually

59:15

can vie for kind of

59:17

national attention with the majority

59:19

of white citizens, especially a

59:21

majority of white citizens that

59:23

have been shaped culturally now

59:25

by the preceding 15 years

59:27

of Constitution Day events and

59:29

oratorical celebrations or competitions around

59:31

the text? And the

59:33

party itself is secretive. It's

59:36

top -down. It's taking

59:38

direction from Stalin effectively

59:40

in ways that I

59:42

think really compromise its

59:44

capacity to build local

59:46

grassroots. And one

59:48

of the kind of top -down

59:50

focuses is a shift in

59:53

orientation. And so you have a

59:55

de -emphasis on black leadership in

59:57

the South. This is the

59:59

stuff that Kelly has emphasized, but

1:00:01

really coming to my story

1:00:03

about the Constitution, Browder

1:00:05

and the leadership of the

1:00:07

Communist Party increasingly move

1:00:09

away from some of these

1:00:11

arguments about the need

1:00:13

for constitutional reform and sort

1:00:16

of explicit critique of

1:00:18

the Constitution to a claim

1:00:20

instead that communism is

1:00:22

20th century Americanism that's perfectly

1:00:24

consistent with various kinds

1:00:26

of patriotic politics and that

1:00:28

if anything, Everything

1:00:31

that you might want, this is

1:00:33

an even more radical version of

1:00:35

the claim that conservative socialists had

1:00:37

made in the teens. Everything that

1:00:39

you might want in terms of

1:00:41

getting to communism, you can get

1:00:43

through the Constitution. So, Browder is

1:00:45

going around giving speeches, stumping for,

1:00:47

in 36 and 37, stumping

1:00:50

for the Communist Party. by

1:00:52

arguing that not only is

1:00:54

communism 20th century Americanism he'll

1:00:56

pull out his own copy

1:00:58

of the Constitution as proof

1:01:00

of his dedication to American

1:01:02

identity, further reinforcing the notion

1:01:04

that you have to support

1:01:06

the Constitution to be an

1:01:08

American. And this

1:01:10

shift certainly pays some dividends in

1:01:12

the context of the popular

1:01:15

front culture of the New Deal,

1:01:17

but it also really undercuts

1:01:19

the capacity of the party to

1:01:21

continue to serve as a

1:01:23

mass mobilizing agent for black people

1:01:25

in the south. And so

1:01:27

it really undermines its grassroots connections,

1:01:29

and it's part of the

1:01:31

story of really the NAACP's definitive

1:01:33

victory over some of these

1:01:35

left formations in terms of shaping

1:01:37

the direction of black politics. And

1:01:40

I just want to pause here

1:01:42

to highlight the deep connection that

1:01:44

you're pointing out between domestic and

1:01:46

international politics, because this insistence that

1:01:49

these two things can be separated,

1:01:51

as we'll see throughout our discussions,

1:01:54

it's repeatedly core to a certain sort

1:01:56

of liberal capitalist political project throughout

1:01:58

the 20th century, and even very much

1:02:00

so today as we can see

1:02:02

with Gaza. And in this case, this

1:02:05

support for black liberation, particularly

1:02:07

in the South, it was fundamentally

1:02:09

related to the Communist Party's

1:02:11

internationalism and then it's their turn

1:02:13

towards Americanism and popular front

1:02:15

politics. That's what involves abandoning

1:02:17

a lot of that. And

1:02:19

then again, it's related to international

1:02:21

politics again on this other

1:02:24

level because it relates to this

1:02:26

very real problem of the

1:02:28

common turn in Stalin dictating CPUSA

1:02:30

politics. So I think

1:02:32

it's useful here just very quickly to note two

1:02:34

different things. So the first is precisely

1:02:37

because of the failures of

1:02:39

the Reconstruction Amendments, that the

1:02:41

kind of Douglas Cretal Constitution

1:02:43

vision that we now associate,

1:02:45

let's say, with somebody like

1:02:47

Obama is facing real pressure

1:02:49

and dissent within black politics.

1:02:51

And it creates space. across

1:02:53

the first two thirds of

1:02:55

the 20th century, and particularly

1:02:57

in the era that we're

1:02:59

describing, for the emergence

1:03:01

of all of these internationalist

1:03:03

black formations that say, well, maybe

1:03:05

the best way to think

1:03:07

about the black experience is through

1:03:09

an analogy with colonialism, but

1:03:11

one that is tailored to

1:03:14

the particularities. of the black

1:03:16

experience in the U .S. and

1:03:18

yet at the same time finds solidarities

1:03:20

and common cause with a broader world

1:03:23

of what later would be called like

1:03:25

the third world, a broader world of

1:03:27

color in the language of somebody like

1:03:29

Hubert Harrison. So that's there as a

1:03:31

strain. And in the

1:03:33

20s, And in the 30s, it's

1:03:35

also connected in various ways to

1:03:37

the politics that's emerging out of

1:03:39

communist formations in the Soviet Union

1:03:41

because of how the Soviet Union

1:03:44

is linked to various types of

1:03:46

anti -imperialist efforts. But

1:03:48

the problem here, and this is something that

1:03:50

needs to be stated, given the fact that

1:03:52

we're going to spend a lot of time

1:03:54

and we have spent a lot of time

1:03:56

talking about American empire, is that the Soviet

1:03:58

Union is not only a deeply oppressive extreme

1:04:01

brand of authoritarianism domestically

1:04:03

under Stalin, but as

1:04:05

it's engaged in its own forms of imperial

1:04:07

power and rivalry, and is

1:04:09

incredibly sort of instrumental and

1:04:11

strategic about these kinds of connections,

1:04:14

and so helps facilitate the

1:04:16

development of institutions that can

1:04:19

express forms of internationalism and then

1:04:21

is willing effectively at the

1:04:23

drop of a hat because of

1:04:25

shifts in judgments in Moscow

1:04:27

to essentially abandon left -wing activists

1:04:29

on the ground in ways that

1:04:32

produce time and again real

1:04:34

forms of despondency and disillusionment. The

1:04:36

politics of imperial rivalry plays

1:04:39

out in both directions vis -a -vis

1:04:41

the US and its own

1:04:43

actions and also the Soviet Union.

1:04:47

Let's get into the

1:04:49

new deal because the

1:04:51

conflicts of this period

1:04:53

and how they were

1:04:56

settled simultaneously modified the

1:04:58

American constitutional system while

1:05:00

also demobilizing and marginalizing

1:05:02

its critics. As we

1:05:04

discussed in the first episode,

1:05:06

the Supreme Court in the late

1:05:08

19th century began aggressively striking

1:05:10

down laws that protected labor and

1:05:12

regulated capital. And this

1:05:14

judicial intervention of the

1:05:16

High Court brazenly doing the

1:05:18

bidding of the ruling

1:05:20

class. It reached a crisis

1:05:23

point in FDR's first

1:05:25

term when in 1935 and

1:05:27

1936 the Supreme Court

1:05:29

struck down major New Deal

1:05:31

reforms and it seemed

1:05:33

poised to strike down the

1:05:36

Social Security Act and

1:05:38

the Wagner Act. Signature New

1:05:40

Deal laws that respectively

1:05:42

created universal retirement insurance and

1:05:44

formalized protections and processes.

1:05:46

for organized labor. In

1:05:48

response, there was a major

1:05:51

push from the left, including from

1:05:53

organized labor against the power

1:05:55

of a high court that famed

1:05:57

garment workers union president, Sydney

1:05:59

Hillman called a quote, judicial

1:06:01

dictatorship. Before

1:06:03

we get to how this

1:06:05

conflict was famously resolved, let's let's

1:06:07

cover how it developed. First,

1:06:09

what was the Supreme Court strategy

1:06:12

in taking such an

1:06:14

aggressively obstructive approach to FDR's

1:06:16

presidency. And then

1:06:18

how did the various factions

1:06:20

of the broad New Deal

1:06:22

coalition propose responding to that

1:06:24

challenge from FDR himself to

1:06:26

the labor movement to various

1:06:29

left -wing organizations? So,

1:06:31

I mean, I think the first thing

1:06:33

to note about the court is, and this

1:06:35

is, they'll obviously be connections to the

1:06:37

present, but the court

1:06:39

was composed of individuals. that

1:06:41

served for life that were

1:06:43

nominated by presidents confirmed by

1:06:45

the Senate, you know,

1:06:47

from effectively an earlier

1:06:50

historical moment. And so real

1:06:52

embodiments in various ways

1:06:54

of a type of business

1:06:56

state. agreement around a

1:06:58

brand of politics that emphasized

1:07:00

the strengths of the

1:07:02

capitalist state. The court

1:07:04

itself had divisions. So

1:07:06

there were four justices that were

1:07:08

collectively called by the New Deal

1:07:10

reformers, the four horsemen of the

1:07:12

apocalypse. So these are the conservative

1:07:14

diehards. And then you

1:07:16

had three justices that constituted the kind

1:07:18

of liberal wing of the court.

1:07:20

what today we would call the liberal

1:07:23

wing but really like the progressive

1:07:25

wing of the court and then you

1:07:27

had two justices in the middle

1:07:29

that were more or less swing justices.

1:07:31

So one is Charles Evans Hughes

1:07:33

who had been the Republican nominee for

1:07:35

president in 1916 as the chief

1:07:37

justice of the court is associated with

1:07:39

a kind of mild brand of

1:07:42

progressivism and then there's another justice named

1:07:44

Owen Roberts. And in

1:07:46

this setting it essentially

1:07:48

meant that especially through the

1:07:50

first term of the

1:07:52

New Deal administration, you more

1:07:54

or less had five

1:07:56

justices that were willing to

1:07:58

strike down various kinds

1:08:00

of regulatory measures passed by

1:08:02

Congress or even state

1:08:04

laws that dealt with providing

1:08:06

relief and need. to

1:08:08

citizens or various types of

1:08:10

labor protections as inconsistent with the

1:08:13

kind of business frame of

1:08:15

the Constitution most famously as inconsistent

1:08:17

with what the court in

1:08:19

1905 in a case called Lochner

1:08:21

had called businesses sort of

1:08:23

fundamental right to contracts. There's like

1:08:25

freedom of contract that's supposed

1:08:27

to be written into the Constitution

1:08:29

that limits the capacity of

1:08:31

any state actor to pass various

1:08:33

types of laws that would

1:08:35

infringe on contracting prerogatives. Now,

1:08:39

that is taking place against

1:08:41

a very particular social backdrop,

1:08:43

which is the Great Depression

1:08:45

and the largest capitalist crisis

1:08:47

in world history. And

1:08:49

it means that there's just

1:08:51

a huge amount of political

1:08:53

organizing that's occurring outside the

1:08:55

institutions of government and certainly

1:08:58

outside the court. It's

1:09:00

also the fact that you've now

1:09:02

had really a half century of

1:09:04

labor organizing. So powerful intermediate

1:09:06

institutions that are mobilizing and incorporating

1:09:08

white male workers within a

1:09:10

politics that's committed to fairly

1:09:13

significant changes to the nature of

1:09:15

the economic system. That's just

1:09:17

like part of the culture of

1:09:19

the society. And it's one

1:09:21

of these things that's sometimes

1:09:23

worth noting, which is sometimes, just

1:09:26

as in terms of effective

1:09:28

power, within society you

1:09:30

can have incredibly strong labor movements.

1:09:32

even under context of incredibly

1:09:34

repressive legal frameworks. And by contrast,

1:09:36

you might have legal frameworks

1:09:38

that seem more supportive, but if

1:09:40

you've had a business culture

1:09:42

that systematically dismantled the union, this

1:09:44

is a way of perhaps

1:09:46

telling part of the story of

1:09:48

the last half century, then

1:09:50

you don't have these sort of

1:09:52

intermediate institutions that can mobilize

1:09:54

people within an oppositional culture. So

1:09:56

all of that exists. And

1:09:59

what it means is that anti

1:10:02

-constitution sentiment, arguments that

1:10:04

the court needs to be

1:10:06

fundamentally reformed. The amendment

1:10:08

process should be simplified. Socioeconomic

1:10:11

rights and workers' rights and farmers' rights

1:10:13

need to be incorporated into the text.

1:10:15

The country needs to move toward something

1:10:17

that looks much more like, you know,

1:10:20

proportional representation in parliamentary democracy.

1:10:22

All of these things come

1:10:24

back to the fore in

1:10:26

the first term. of

1:10:28

FDR's presidency. And you

1:10:30

also have folks that were connected

1:10:32

to the old progressives that

1:10:34

are making arguments about the need

1:10:36

for changes to the constitutional

1:10:39

system, maybe alterations to even powers

1:10:41

of judicial review. You have

1:10:43

people that are tied in various

1:10:45

ways to the Communist Party,

1:10:47

like Vito Marcantonio, the great congressman

1:10:49

out of New York that's

1:10:51

proposing a constitutional convention in the

1:10:54

mid -1930s. And the 36...

1:10:56

election ends up, and this is

1:10:58

stuff that a lot of different constitutional

1:11:00

scholars have done work on, becomes

1:11:02

in many ways a referenda

1:11:05

not just on the court

1:11:07

but on this constitutional system

1:11:09

as a whole and whether

1:11:11

or not ultimately there needs

1:11:13

to be fairly profound changes.

1:11:17

And FDR wins in a

1:11:19

landslide really that the country

1:11:21

had not seen since Monroe Monroe

1:11:24

basically runs unopposed in 1820. He

1:11:26

gets over 60 % of the

1:11:28

vote in the House and the

1:11:30

Senate. He has the backing, including

1:11:32

aligned independents and Republicans of what

1:11:34

amounts to three quarters or even

1:11:37

80 % of the House and Senate.

1:11:39

And so this is a reelection.

1:11:42

that is a genuine transformative

1:11:44

political mandate that's marked by the

1:11:46

fact that in a way

1:11:48

that is truly historically unusual in

1:11:50

the U .S., before and after,

1:11:52

you have large, rolling supermajorities

1:11:54

organized through working -class institutions that

1:11:56

are backing New Deal policies and

1:11:58

change. Something that's quite different,

1:12:00

by the way, than thinking about,

1:12:02

like, you know, Trump getting

1:12:04

not 50 % of the vote

1:12:06

in this last election. We'll

1:12:08

perhaps get to that later. And

1:12:11

one of the things that FDR

1:12:13

proposes is court packing as an

1:12:15

initial mechanism for overcoming the potential

1:12:17

threat posed by the court because

1:12:19

there are these big cases that

1:12:21

are on the horizon and the

1:12:23

biggest one has to do with

1:12:25

the constitutionality of the National Labor

1:12:27

Relations Act and whether or not

1:12:29

collective bargaining is going to be

1:12:31

held to be unconstitutional by the

1:12:33

court, which is the general expectation.

1:12:39

proposing a reorganization of the federal

1:12:41

courts that would add a

1:12:43

new justice to the court for

1:12:45

everybody that is over the

1:12:47

age of 70. And since that's

1:12:49

all four of the conservatives

1:12:51

and two other justices, that would

1:12:53

basically mean six new justices

1:12:55

up to 15. There's

1:12:57

an interesting internal debate

1:13:00

that's taking place within,

1:13:02

broadly speaking, the

1:13:04

kind of New Deal intellectual infrastructure. Folks

1:13:08

that are New Deal aligned, New

1:13:10

Deal lawyers as well as in labor

1:13:12

and civil rights groups, they

1:13:14

tend pretty much across the board,

1:13:16

these factions. There are some other people

1:13:18

within the New Deal alliance that

1:13:20

are wary of court packing and the

1:13:23

kind of assertions of presidential power

1:13:25

that it might entail. But

1:13:27

let's say labor civil

1:13:29

rights groups and New Deal

1:13:31

lawyers, FDRs lawyers, they

1:13:33

all support court packing. They

1:13:36

think that, you know, that you're going

1:13:38

to have to change who's on the court

1:13:40

in order to ensure that decisions are

1:13:42

actually consistent with what the mass of public

1:13:44

wants. They see it as a kind

1:13:46

of democratization effort and that this is a

1:13:49

moment to ensure that working class interests

1:13:51

are able to overcome all of these anti

1:13:53

-democratic roadblocks that have basically de -emphasized and

1:13:55

undermined the power of the vote. But

1:13:58

there's a disagreement. between

1:14:01

some of the folks that are part

1:14:03

of the intellectual sort of infrastructure of the

1:14:05

New Deal. So some lawyers,

1:14:07

even somebody like Charles Beard, and

1:14:10

then some people like, you

1:14:12

know, socialists for instance. So

1:14:14

somebody like Norman Thomas. Over

1:14:16

whether or not court

1:14:18

packing at the end of

1:14:20

the day needs to

1:14:22

be connected to formal constitutional

1:14:24

changes to the representative

1:14:27

institutions. So the argument

1:14:29

that somebody like Du Bois

1:14:31

or Norman Thomas make is

1:14:33

that, yes, court packing now, but

1:14:36

it has to be tied

1:14:38

more programmatically to a set

1:14:40

of amendments that would essentially

1:14:42

make the infrastructure more consistent

1:14:44

with democratic practice. For Du

1:14:46

Bois, he's taking really seriously

1:14:48

these ideas about the state.

1:14:50

He views the centrality of

1:14:52

the state. as the

1:14:54

basic unit of representation as something that

1:14:56

will necessarily replicate Jim Crow politics,

1:14:58

especially given the fact that black people

1:15:01

are denied the vote in the

1:15:03

south and that the south will be

1:15:05

able to maintain a kind of

1:15:07

bastion of racial and economic rule for

1:15:09

a particular kind of, you know, planter

1:15:12

class still effectively. And so he

1:15:14

thinks that you have to confront what

1:15:16

he calls the taboo of the

1:15:18

state in order to be able to

1:15:21

ensure that you're able to

1:15:24

eliminate this sort of white

1:15:26

authoritarian roadblock. For Norman Thomas,

1:15:28

he thinks that there needs

1:15:30

to be broad changes to

1:15:32

the constitutional order. The socialists

1:15:35

are still calling for things

1:15:37

like a simplified constitutional amendment,

1:15:39

a workers' rights amendment that

1:15:41

specifies particular types of socioeconomic

1:15:43

guarantees. and changes, formal

1:15:46

changes to the judiciary, but

1:15:48

that are organized through amendment

1:15:50

that are not just about adding

1:15:52

judges, but altering, for

1:15:54

instance, the power the

1:15:57

judges have, so containing judicial

1:15:59

review by providing perhaps

1:16:01

legislative overrides, producing term limits

1:16:03

for the court, so

1:16:05

general package of structural changes.

1:16:08

On the other side, you

1:16:10

have new dealers that

1:16:13

say, well, you know, Americans are

1:16:15

kind of increasingly attached to this

1:16:17

text, especially as it's exited this

1:16:19

sort of venerative period of the

1:16:21

teens and twenties. And rather than

1:16:23

sort of worrying about changing it

1:16:25

formally and sort of confronting these

1:16:28

debates about whether or not that's

1:16:30

un -American, because you have

1:16:32

so much mass support, you

1:16:34

can play on the informal

1:16:37

tools that are available. Like

1:16:39

the president and the courts,

1:16:41

if the courts or differently

1:16:43

organized, they can just produce

1:16:45

political outcomes that are consistent

1:16:48

with popular need. And

1:16:50

for Beard, this is the

1:16:52

genesis of ideas of the constitution

1:16:54

should be thought of as a

1:16:56

living constitution. Yes, the Framers document

1:16:58

was undemocratic, but this document, without

1:17:00

being formally rewritten, is so open -ended

1:17:03

that you can basically implement

1:17:05

the changes that you might want.

1:17:07

FDR's court packing proposal is Always

1:17:09

presented retrospectively as one of

1:17:11

the most radical things he

1:17:13

did, but it's actually a

1:17:15

workaround from actually substantively overhauling the

1:17:18

Constitution or it has this

1:17:20

ambiguity it has this really

1:17:22

profound ambiguity because on the

1:17:24

one hand Absolutely, it could have

1:17:26

been quite radical if implemented.

1:17:28

So as it turns out,

1:17:30

we'll tell the story of

1:17:32

why we don't end up getting

1:17:34

court packing. But you could

1:17:36

imagine an alternative world in

1:17:39

which if the court is

1:17:41

expanded to 15, and

1:17:43

then perhaps legislatively there's also the implementation

1:17:45

of various kinds of structural changes

1:17:47

to the nature of the federal judiciary,

1:17:50

that that could have produced a very

1:17:52

different kind of constitutional order going forward.

1:17:54

It's the reason why you have communist,

1:17:56

socialist, labor, civil rights support

1:17:58

for the policy. But on

1:18:00

the other hand, this is

1:18:02

the point that Norman Thomas

1:18:04

makes. So Norman Thomas says,

1:18:06

it's a strange thing to

1:18:08

actually even have labor activists

1:18:10

so excited about court packing

1:18:12

because that alone will just

1:18:14

mean rule by 15 judges

1:18:16

rather than nine. And

1:18:19

in a way, that's more

1:18:21

the mindset of FDR, which

1:18:23

is FDR is wary of

1:18:25

going down the constitutional amendment

1:18:27

path because he sees it

1:18:29

as even if there's support,

1:18:32

a lot of opportunity for business

1:18:34

elites, conservatives to muck up

1:18:36

the process and make it hard

1:18:38

to implement the changes. And

1:18:40

we can think even about the

1:18:42

difficulties of new constitutions in

1:18:44

places like Chile. So this is

1:18:46

a real concern. He's worried

1:18:48

primarily about economic royalists. But

1:18:50

at the same time, He's

1:18:52

worried about opening the system to something that

1:18:54

might look like genuine social revolution. If you

1:18:56

go down the path of saying we wanna

1:18:58

break up the states, alter the

1:19:01

administrative, the basic administrative and representative units

1:19:03

of the government, if you wanna

1:19:05

simplify the amendment process. And

1:19:07

he much prefers

1:19:09

holding firm to a

1:19:11

story of American

1:19:13

renewal and restoration through

1:19:15

constitutional rededication. So

1:19:17

he gives speeches. for

1:19:20

instance, on Constitution Day about the

1:19:22

way in which he's just trying

1:19:24

to think of the Constitution as

1:19:26

a document that now can be

1:19:28

made living and available effectively to

1:19:30

all. But at the same time,

1:19:33

what this does is it puts

1:19:35

the power in the office of

1:19:37

the president in FDR's hands to

1:19:39

balance what he sees as these

1:19:41

socially revolutionary forces and these economically

1:19:43

royalist forces. And

1:19:46

I think the choice, maybe we

1:19:48

can get into this, Ultimately,

1:19:51

to pursue court packing which

1:19:53

fails and then close the

1:19:56

door on these more structural

1:19:58

reform changes really does have

1:20:00

profound and lasting effects that

1:20:02

we're dealing with to this

1:20:04

day. It's probably the last

1:20:06

historical moment where it would

1:20:08

have been possible to imagine

1:20:10

a large -scale renewal of the

1:20:13

basic institutions of governance. Let's

1:20:15

get into that. Now this

1:20:17

is this famous moment in American

1:20:19

history known as the switch

1:20:22

in time that saved nine FDR

1:20:24

threatened to pack the court

1:20:26

a huge political fight ensued the

1:20:28

court ultimately responded by upholding

1:20:30

major New Deal legislation Essentially capitulating

1:20:32

to the president allowing him

1:20:35

to pull back on the court

1:20:37

packing proposal and so the

1:20:39

Supreme Court adapted and it what

1:20:41

it adapted to was a

1:20:43

government that like Woodrow

1:20:45

Wilson's in some ways, though

1:20:47

with very different politics, that

1:20:50

was using an expanded administrative

1:20:52

state and expanded presidential power

1:20:54

to work around the textual

1:20:56

rigidity of the Constitution. And

1:21:00

so this arrangement did save

1:21:02

core New Deal measures from the

1:21:04

court. But as

1:21:06

you just said, the

1:21:08

settlement had major

1:21:10

implications, particularly insulating the

1:21:12

constitutional order from

1:21:14

more radical threats. All

1:21:16

of this, you

1:21:18

write, wrapped up

1:21:20

with a stabilization of the

1:21:23

American system that did so

1:21:25

many things that pushed the

1:21:27

labor movement rightward alongside this

1:21:29

increasingly patriotic, suburbanized white working

1:21:31

class that undermined labor's ability

1:21:33

to organize the South. All

1:21:35

key factors in so much

1:21:37

of what has gone wrong

1:21:39

in this country ever since. Why

1:21:42

did this provisional settlement

1:21:45

of the constitutional crisis have

1:21:47

such important long -lasting impacts?

1:21:50

So the chapter on the

1:21:52

New Deal using a phrase

1:21:54

that's sort of been made

1:21:56

famous in legal scholarship by

1:21:58

Riva Siegel refers to this

1:22:00

as an era marked by

1:22:02

transformation and preservation. And I

1:22:04

think it's really worth highlighting

1:22:07

both that what the court

1:22:09

packing episode absolutely kicks off

1:22:11

is a profound transformation in

1:22:13

the constitutional system, one that

1:22:15

we sometimes don't end up appreciating in the

1:22:17

U .S. because there's this idea that, well, we've

1:22:19

had the same text in 1787. But

1:22:22

in truth, our constitutional

1:22:24

order and those elements of

1:22:26

the Cretal constitutional order that

1:22:28

I described in the last

1:22:30

episode are really like their

1:22:32

genuine like institutional genesis point

1:22:35

are these battles and debates

1:22:37

in the 30s. And they're

1:22:39

consolidated over the course of

1:22:41

these three really decisive decades

1:22:43

between the 30s and the

1:22:45

60s. And so it's absolutely

1:22:47

transformative. But at the

1:22:49

same time, it's preservationist in

1:22:52

sort of maintaining some of the

1:22:54

really constitutive flaws that it

1:22:56

existed from the beginning in the

1:22:58

democratic arrangements. And it's maybe

1:23:00

worth just like going through both

1:23:02

elements of it. So what

1:23:04

happens after the election, which is

1:23:07

this historic landslide election? Owen

1:23:09

Roberts, who's one of these

1:23:11

swing justices in the middle, he

1:23:13

decides at that moment in

1:23:15

December, it seems, that you

1:23:17

know what, the public has spoken, this

1:23:20

was an election on these kinds of constitutional

1:23:22

questions, and that he's going to switch. He's

1:23:24

going to end up flipping. So

1:23:26

it's not quite the case that

1:23:28

he flips because of court packing, because

1:23:30

court packing is only really introduced.

1:23:32

later, but it's nonetheless the

1:23:35

case that the context, the

1:23:37

political context ends up shaping where

1:23:39

he's coming from. And

1:23:41

then there are these two cases.

1:23:43

There's a case in March that

1:23:45

comes out that has to do

1:23:47

with basically labor legislation that just

1:23:49

impacts women out of the state

1:23:52

of Washington. And here you

1:23:54

now have five justices in an opinion

1:23:56

written by the Chief Justice. cues

1:23:59

that rejects Lochner says that there

1:24:01

is no constitutional basis for the

1:24:03

idea of freedom of contract and

1:24:05

that you cannot strike down such

1:24:07

labor legislation and Roberts is the

1:24:09

justice that flips and so that's

1:24:11

thought of as the switch in

1:24:14

time that saves nine but really

1:24:16

the energy around court packing and

1:24:18

court reform hasn't abated yet because

1:24:20

the big case is the one

1:24:22

that's going to be decided in

1:24:24

April. And that has to do

1:24:26

with the constitutionality of the Wagner

1:24:29

Act, collective bargaining, the National Labor

1:24:31

Relations Act. And then the

1:24:33

court, similar, 5 .4,

1:24:35

Roberts flipping, upholds

1:24:37

the constitutionality of the Wagner Act.

1:24:39

And that actually produces mass celebrations

1:24:41

within labor circles, including in Eloquipa,

1:24:43

which is the headquarters of the

1:24:46

company that's contesting the constitutionality of

1:24:48

the National Labor Relations Act in

1:24:50

that particular case. And

1:24:52

it's that moment where the

1:24:54

Wagner Act has been constitutionalized

1:24:56

that starts to dissipate the

1:24:58

kind of mass energy around

1:25:00

whether or not in point

1:25:02

of fact you actually need

1:25:04

really broad range formal structural

1:25:06

reforms to the institutions of

1:25:09

the courts and by extension

1:25:11

to the constitutional system at

1:25:13

large. And then there's another

1:25:15

moment that's key. which is

1:25:17

one of the four horsemen

1:25:19

of the apocalypse, Willis

1:25:21

van de Venter, decides to retire in

1:25:23

May. And when he decides to

1:25:25

retire, that means that FDR is going to be

1:25:27

able to nominate a new justice to the

1:25:29

court and that the composition of the court is

1:25:31

going to fundamentally change. And that's really the

1:25:34

story through the 30s and 40s. By the time

1:25:36

FDR leaves office, he's basically been able to

1:25:38

do transformative appointments to reconstruct who's on the court.

1:25:41

And this basically establishes a

1:25:43

pattern for how constitutional

1:25:45

change takes place in the

1:25:47

20th century in the

1:25:49

US, which is you have

1:25:51

elections. You get

1:25:53

presidents elected. Those presidents

1:25:55

then nominate justices to the

1:25:57

court that are consistent with their

1:25:59

own ideological vision. The idea

1:26:01

is that these elections are majoritarian

1:26:03

so that the kind of

1:26:05

counter -majoritarian features of the state

1:26:07

won't necessarily intrude on the ability

1:26:10

of the elections to transform

1:26:12

the composition of the courts. And

1:26:14

then Presidents are able to pass,

1:26:16

ideally, landmark pieces of legislation. So in

1:26:18

the 30s, things like the Social

1:26:20

Security Act or Wagner Act, later on

1:26:23

we'll see things like Medicare, the

1:26:25

Voting Rights Act, the Civil Rights Act.

1:26:28

And then these landmark pieces of legislation

1:26:30

become cornerstones of the constitutional system,

1:26:32

even if they're not written into the

1:26:34

text, through their democratic

1:26:36

authorization and then through interpretation

1:26:38

from the courts that upholds

1:26:40

them. So it's a new

1:26:42

framework or model for what

1:26:44

amounts to informal changes to

1:26:46

the Constitution without textual changes

1:26:49

because of a hesitance of

1:26:51

FDR to pursue textual changes.

1:26:53

And then after the FDR

1:26:55

moment, a kind of difficulty

1:26:57

of mobilizing the types of

1:26:59

super majorities that would be

1:27:02

necessary to actually pass through

1:27:04

amendments becomes basically a kind

1:27:06

of dead letter. Now

1:27:08

this, it should be stated, produces

1:27:11

a dramatic change in the constitutional

1:27:13

system. This is the period where we're

1:27:15

starting to see entrenched, not

1:27:17

just a commitment to

1:27:19

capitalism and market capitalism, but

1:27:21

regulated by an administrative

1:27:24

state in a limited but

1:27:26

meaningful social welfare framework. And

1:27:28

so it's the emergence of

1:27:30

the administrative state, the emergence

1:27:32

too of an administrative state.

1:27:34

That's meant to be kind

1:27:36

of independent from just presidential

1:27:38

say so and so has

1:27:40

agency authority that's been Authorized

1:27:42

by Congress but that produces

1:27:44

its own internal insulation dynamics

1:27:46

of expertise that are supposed

1:27:48

to avoid absolute extreme forms

1:27:50

of political pressure and intervention

1:27:52

and I should note That

1:27:55

on the one hand if

1:27:57

you're just thinking about this

1:27:59

in the mid 30s 37

1:28:01

38 bills like the Fair

1:28:03

Labor Standards Act, that

1:28:05

there's a way in which

1:28:07

this is a story of extending

1:28:09

and entrenching the presidential workaround

1:28:11

that we've started to see with

1:28:14

Wilson and even before Wilson,

1:28:16

Teddy Roosevelt, so that the system

1:28:18

itself is misshapen. But

1:28:20

maybe presidentialism can produce

1:28:22

a kind of democratic authorization

1:28:24

and generate the type

1:28:26

of administrative state that can

1:28:28

solve social problems. And

1:28:31

so in that way, it's an

1:28:33

extension of that vision, and we can

1:28:35

think about the problems of it,

1:28:37

especially in national security domains. We've already

1:28:39

started to see this with the

1:28:41

crackdowns with World War I. It's going

1:28:43

to intensify as the country becomes

1:28:46

a genuinely global hegemon. But

1:28:48

on the other hand, it's also

1:28:50

worth highlighting. This

1:28:52

is work that Kate Andrews, as

1:28:54

well as Willie Forbath and Joey

1:28:56

Fish can have done, that there

1:28:58

was an effort to think about

1:29:00

if you're going to adapt an

1:29:02

administrative state onto this constitutional order

1:29:05

and you're not going to change

1:29:07

the institutions of representation, can you

1:29:09

make that administrative state democratic? Can

1:29:12

it be not just marked by insulated

1:29:14

expertise? And one of the thoughts here,

1:29:16

and you start to see this in

1:29:18

bills like the Fair Labor Standards Act,

1:29:21

is creating tripartite

1:29:23

arrangements that are

1:29:25

corporatist, but where it's

1:29:27

government, business, and labor

1:29:29

that are given the authority

1:29:31

to actually make decisions

1:29:33

about how to regulate the

1:29:35

economy. So how do

1:29:37

you incorporate labor effectively as

1:29:40

a decision maker that

1:29:42

can participate in the organization

1:29:44

of what had typically

1:29:46

been managerial prerogatives and so

1:29:48

have an administrative state

1:29:50

that is organized in ways

1:29:52

to not just produce,

1:29:54

you know, insulated expertise but

1:29:56

to combine social science

1:29:58

expertise with various types of

1:30:00

entrenchments, authorized entrenchments for

1:30:02

the intermediate institutions of civil

1:30:05

society. Now

1:30:07

the problem, and this

1:30:09

is the ultimate story

1:30:11

of preservation, is

1:30:13

really like the problem that

1:30:16

Harry Haywood and that Du

1:30:18

Bois is articulating. Du Bois

1:30:20

has two books on the

1:30:22

Constitution, Black Reconstruction

1:30:24

and then later on Color

1:30:27

and Democracy in 45,

1:30:29

Black Reconstruction is 35. These

1:30:31

to me are masterworks

1:30:34

of constitutional theory and argument

1:30:36

and yet are rarely,

1:30:38

even if they're taught, increasingly

1:30:40

in other domains are

1:30:42

rarely taught by constitutional scholars

1:30:44

as about constitutional life.

1:30:47

It's another way in which

1:30:49

all of these very

1:30:51

interesting figures of constitutional thought

1:30:53

from Crystal Eastman to

1:30:55

Du Bois basically get written

1:30:57

out of the conventional

1:30:59

story. But the

1:31:01

argument that Du Bois is

1:31:04

basically making is that

1:31:06

unless FDR faces up, not

1:31:08

just to the Jim Crow

1:31:10

politics of the South, but the

1:31:12

institutions of representation that sustain

1:31:14

it, that this vision of democratizing

1:31:16

the administrative state is itself

1:31:18

going to break down. Now,

1:31:21

FDR and those around

1:31:23

him understand that Jim Crow

1:31:25

politics and black disenfranchisement

1:31:27

is a huge problem for

1:31:29

the New Deal agenda.

1:31:32

He tries to run against

1:31:34

white reactionaries, southern reactionaries

1:31:36