To resolve the tension between democracy and liberalism: What is a constitution for?
Over the long, bloody haul of the 20th century, we replaced monarchy and religion with democracy and liberalism. No longer were we bound by the dogma of religious texts and the dictates of dictators; instead, we insisted on “individual freedom and collective self-governance.” We spoke of liberalism and democracy as inextricably linked and our inevitable destiny — famously captured in Francis Fukuyama’s The End of History?
By 1997, Fareed Zakaria had already warned of The Rise of Illiberal Democracy, describing in detail the illiberal actions taken by democratically elected leaders in Russia, Argentina, Iran, Ethiopia, and elsewhere. For Zakaria, the purpose of democracy is to ensure liberalism, protecting “an individual’s autonomy and dignity against coercion, whatever the source — state, church, or society.” But outside of the West, democracy was not uniformly producing liberal outcomes.
While the world at large has become more democratic and more liberal since 1997, two things have changed since Zakaria’s warning. First, illiberal democracy has come to the West, including in the United States where activists from both parties defend the use of illiberal means to (in their view) sustain democracy. Second, critics increasingly question the liberal ideal to protect an individual’s autonomy while loneliness increases and happiness declines. The cover story of this month’s Harper’s asks, Is Liberalism Worth Saving? In the Atlantic, Shadi Hamid describes the divergence of democracy from liberalism and ultimately argues that we ought to respect the outcome of democratic elections, even when we disagree with the illiberal actions of elected leaders (such as Indonesia’s criminalization of sex outside of marriage or India’s decision to exclude many Muslims from citizenship).
Largely absent from the debate about democracy’s detachment from liberalism is whether we ought to consider changes to the democratic process that 1) give citizens more input into defining the rights of citizens and the responsibilities of government and 2) creates a healthy buffer between our commitment to democracy and the contentious debates over social values. Are we trying to do too much with a single constitution?
A few conversations in recent months led me to consider a deceptively simple question: What is the purpose of a constitution? Those conversations began in Chile, where a few friends were working on an ambitious referendum that aimed to replace one of the world’s most conservative constitutions with one of the most progressive. Around the same time, the US Supreme Court overturned the right to abortion established nearly 50 years ago while constitutional scholars debated proposals to reform the Supreme Court. I then traveled to Kenya, which put into place one of the world’s most ambitious and progressive constitutions in 2010 to “seek social transformation through constitutionalism.” But 12 years after the Constitution was established, the Kenyan government has increasingly undermined its importance by ignoringthe rulings of Kenya’s Supreme Court. Finally, I discovered US@250, a project to commemorate 250 years of American Independence in 2026 and to imagine how to “to build the America that has never fully been.”
From these conversations, I began to develop a new point of view about the purpose of a constitution: It ought to define the rules of a democracy, not the social compact of rights and responsibilities between a government and its people. In the following sections, I offer three related arguments:
- Progressives (in the United States, in Chile, and around the world) are making a mistake by seeking social progress through legal interpretation instead of political persuasion.
- A constitution should establish the rules of a democracy, not define the political aspirations of its people.
- A constitution should last for at least 1,000 years. But the guiding principles of any society must be revisited and revised every 50 years. Each generation should have at least one opportunity in its lifetime to revise the social compact and define its shared identity.
The mistake of seeking social progress through legal interpretation
Over the past three years, several activist friends in Chile have been hard at work to replace one of the world’s most conservative constitutions with one of the most progressive. Last September, Chileans went to the polls, where they overwhelmingly (and sensibly) rejected the proposed replacement constitution.
Chile is a mostly conservative, Catholic country that only legalized divorce in 2004. But over the past 10 to 15 years, the college-educated children of a growing middle class (including my friends) have become very progressive and politically ambitious. They want to legalize abortion, gender parity on corporate boards, universal public healthcare, guaranteed public housing, and protections for the environment that would slow Chile’s lucrative copper and lithium mining. Their mistake, in my view, was to seek their goals through an all-or-nothing referendum on a new constitution rather than slowly building popular support through persuasive politics and the legislative process.
Over the past 50 years, conservatives in the US have advanced a vision of the Constitution — originalism — to offer a façade of neutrality that, in reality, advances their own political preferences. In response, my colleague Larry Kramer argued on the Ezra Klein Show that liberals must define their own vision of the constitution to compete with originalism. He points to the “Anti-Oligarchy Constitution,” as one example that envisions the Constitution as a charter intended to move us away from Europe’s 18th-century oligarchy and toward increasing egalitarianism. Jedediah Purdy goes a step further, advocating for a progressive constitutionalism that 1) expands access to voting, 2) establishes a concept of economic citizenship, 3) reforms criminal justice, and 4) respects the rights of non-citizens.
Will a new “vision” of the Constitution influence how the Supreme Court interprets it, or should we seek other paths toward egalitarianism that don’t depend on the so-called “judicial supremacy” of nine politically appointed, and unaccountable judges? As I contend below, our collective commitment to the rules of democracy will be stronger if we separate it from the contentious social conflicts that too often are decided through legal interpretation rather than political persuasion.
Designing democracy versus debating our rights
According to conservative interpretation, the Constitution intended to create a country where property is respected, you are free to practice any religion, say whatever you want, and the government should mostly leave you alone. According to the liberal interpretation, the Constitution is an aspirational document meant to nudge us along down the path toward equality and social justice. The actual Constitution is famously concise and lends itself to both interpretations. It establishes a republic that honors both liberty and equality without offering much guidance on how to resolve the inherent tension that lies within.
In fact, the 4,400-word Constitution barely mentions liberty or equality. In its original form, the document serves two functions: First, it creates a national government consisting of a legislative, an executive, and a judicial branch, with a system of checks and balances; second, it divides power between the federal government and the states. It wasn’t until four years later, in 1791, that the Bill of Rights was ratified and the Constitution took on a third function: to protect the individual liberties of American citizens.
The U.S. Constitution is the world’s oldest and shortest active constitution. By comparison, India’s constitution is 30 times longer and Mexico’s is 10 times longer.[1] With a handful of exceptions (Norway, the Netherlands, Argentina), most active constitutions were drafted in the past century and serve multiple functions. If you were to read them all, what would you find?
Helpfully, Elliot Bulmer has done the hard work for us, highlighting a menu of eight core possible functions found across many constitutions. Most fundamentally, according to Bulmer, a constitution defines the rules of the game:
Imagine two teams playing a game of football. If the team in possession of the ball could change the rules of the game and appoint its own referee, then the game would hardly be fair. One team would always win, and the other would lose — or simply stop playing. This is like political life without a democratic constitutional order. The party, faction or group in power makes up the rules, and those in opposition are excluded from a game that is rigged against them. A democratic constitutional order acts like the rules of the game, and its guardians — for example, a constitutional court — are like the referee. They make sure that everyone can play the ‘political game’ fairly.
Eliot Bulmer, What is a Constitution? Principles and Concepts
And yet he cautions that “even the best constitution cannot pave a road or build a sewer; it cannot manage a clinic or administer a vaccine; it cannot educate a child or take care of an elderly person.” But that is precisely what the drafters of many modern constitutions aim to achieve. To continue with Bulmer’s analogy, they attempt to not just set the rules of the game, but also how to structure the offense.
Consider South Africa’s 1996 post-apartheid constitution, which guarantees that everyone “is entitled to reasonable access to housing, health care, and education.” That sounds nice, but when the evicted residents of an informal settlement on private land sued the government for their constitutional right to housing, South Africa’s Constitutional Court turned them down. What is the use of a constitutional right if it is not upheld? Similarly, Kenya’s constitution includes a number of social and economic rights, including that “every person has the right to the highest attainable standard of health, including reproductive health care.” Unlike in South Africa, Kenya’s Supreme Court often upholds these rights only for the government administration to consistently ignore their implementation.
Scandinavian countries are generally better than Kenya and South Africa at providing housing, education, and welfare even though these things are not mentioned in their constitutions. Social services have broad popular support in Scandinavia because they have been negotiated and debated in the press, in parliament, and at the dining room table — not decreed by a handful of justices in black robes.
The Bill of Rights was, in the long run, a mistake with good intentions. Whereas the Constitution mostly established the rules of the game for the three branches of government, the Bill of Rights defined the rights of citizens vis-à-vis their government. By placing those rights in the Constitution instead of legislation, we relegated the authority of their interpretation to nine unaccountable individuals on the Supreme Court and made it nearly impossible to revise them.
Consider the Third Amendment, which decrees that during times of peace no soldier can take over someone’s house without their consent. Just imagine, this was necessary to declare in 1791! While the Third Amendment is utterly irrelevant today, others remain perennially pertinent, even if they were drafted to respond to wildly different circumstances.
For instance, the Fourth Amendment says the government can’t search your home unless it has a warrant for probable cause. This was one of the contributing causes that led to the Revolution when British customs officers routinely searched colonists’ homes in the 1760s for any goods that were purchased from Dutch or French traders without paying an import tax to the British Crown. 250 years later, conservative activist Larry Klayman used the same amendment to argue that the Obama administration should not be able to collect information about Americans’ phone calls in its efforts to thwart terrorist attacks.
Should we use a right that was drafted in the context of overzealous tax officials in the 1760s to decide whether the government should be able to keep a database of information about phone calls in its attempt to prevent terrorist attacks in 2013?[2] Do we want that decision to be made based on the legal interpretation of nine Supreme Court justices? Doesn’t it seem important to have a society-wide debate about the trade-offs between freedom from government surveillance and freedom from terrorist attacks? The Supreme Court found that wholesale government monitoring of information about our phone calls was unconstitutional. And yet, when it comes to paying taxes — the original motivation of the Fourth Amendment — state governments can still monitor your cell phone records to determine your residency.
💡 When we can no longer locate the pulse of principled constitutional change in a court, maybe we will again find it in the people. If so, then this passing may ultimately be for the good.
~ Larry Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution
When a constitutional right becomes a policy debate
What happens when a rule moves from the legal interpretation of nine judges to the political arena?
No sane person would argue that John Bingham intended to guarantee the right to abortion when he drafted the 14th Amendment in 1866. The constitution was amended to respond to a particular context and then interpreted to apply to another. Specifically, the 14th Amendment extended civil and legal rights to formerly enslaved Black citizens. Whatever your views on abortion, we can agree that the application of the 14th Amendment was a leap of imaginative legal interpretation.
What happened once the right to abortion was repealed in June? For one, it created a living nightmare for thousands of American women — the “stories that the anti-abortion movement doesn’t want you to know,” as Jill Filipovic has been documenting on her Substack. Also, abortion became a political liability for Republicans — at the federal and state level. Following the Supreme Court’s decision, Americans expressed more support for access to abortion.
Why did Democrats perform better than expected in the midterm elections? According to analyst David Shor, “abortion went from being a somewhat good issue for Democrats to becoming the single best issue.” It also forced Republicans to express their support for contraceptives and policies that support single mothers. By taking away the right to abortion from the Supreme Court, it increased political participation and popular support for abortion access among the people and their representatives.
The worse a society’s politics, the more it will lean on the law to resolve deep-seated disagreements, which tends to deepen them further still.
~ Ian MacDougall paraphrasing Grant Gilmore
You could argue that we needed the Supreme Court to protect the rights of women, people of color, and LGBTQ until there was enough popular support to convert those rights into legislation. I am not making that argument. My argument is that a modern constitution in the 21st century ought to enforce the rules of the political game but not define civil liberties or political aspirations. Let’s use one of the most contentious issues of the day in the United States as an example.
What if the Supreme Court were to issue a decision that guaranteed the right for anyone to enter any bathroom no matter their assigned sex at birth? Or what if they did the opposite? What if they said it was unconstitutional to enter a bathroom that does not correspond to the sex listed on your birth certificate?
Some cisgendered women say they feel unsafe in a bathroom with other women who were assigned male at birth. Some transgendered women say they feel unsafe being forced to use the men’s bathroom just because it was their assigned sex at birth. Some men and women say they feel uncomfortable in unisex bathrooms. How do we resolve these tensions? Do we want to delegate the decision to the Supreme Court? Or should the rules emerge iteratively over time as we try out various approaches?
Separating the Constitution from the Social Compact
“The costs are significant when constitutional law pushes too far into the domain of politics. Today, many of our most pressing political concerns are ultimately resolved in the bloodless vernacular of constitutional law, which rejects the stuff that matters to ordinary people.”
~ Ian MacDougall
The rights of citizens and responsibilities of the government ought to be debated and updated more often than the rules of democracy — and not just by a handful of justices. A constitution ought to stay relevant for at least 1,000 years, if not longer, while citizens deserve the opportunity to revise the social compact every 50 years as technology, demographics, and social norms evolve. In 2026, the United States will celebrate its 250th birthday. It presents a unique opportunity to revisit our past and reimagine our shared future. As the US@250 project challenges us:
In 1776, the colonies severed from The British Empire in a declaration of independence. In 2026, we can design and choose how we commemorate that revolt. America was — and can be again — a creative act. We have within us the ability to do the work, and strengthen the muscles, to build the America that has never fully been. A nation that still we have the audacity to imagine — and the will to create.
Imagine, the U.S. Constitution was drafted in secrecy by just 55 dudes over five months. The telegraph wouldn’t be invented for another 60 years. The population at the time was roughly 2.5 million, of which around 80% were European immigrants/descendants and 20% were enslaved Africans and African descendants.[3] Today, we are a diverse nation of more than 330 million hyper-connected people — descendants of ancestors from all corners of the globe.
A number of recent books have envisioned America’s next civil war, including David French‘s Divided We Fall, Stephen Marche’s The Next Civil War, and Barbara Walter’s How Civil Wars Start. If the first American Civil War was fought over slavery, just what would be fighting over today? Assigned sex and bathrooms? DEI training in the workplace? Pronouns? When we step back from the intensity of the news cycle and social media reactions, it becomes clear that our differences today are minor compared to the past. There is much that holds us together as a nation despite the narrative that we are coming undone.
We can do two things at once. We can process the trauma and injustices of the past while we recreate the solidarity and shared identity of our future. As Keith Yamashita writes, confronting our pain is how we achieve flourishing — both individually and collectively. Imagine if we were to spend a few days, or at least a few minutes, in 2026 to reimagine our social compact, collective identity, and democratic commitment.
Liberalism and Democracy
We consider liberal democracy as an inseparable package because they developed concurrently. And yet the culture war debate over liberalism erodes our collective commitment to the rules of democracy. Authoritarian leaders take advantage of our social divisions to flout democratic rules and consolidate their power. Our commitment to the rules of democracy ought to be sacred, unanimous, and non-negotiable whereas the social compact of rights and responsibilities will always be contentious and influenced by technological change.
For instance, what do we consider free speech versus incitement to violence? How much surveillance will we allow to feel safe? Who benefits from the natural resources beneath the soil? Should all abortions be legal? Who is permitted to become a citizen and what are the rights of an immigrant? How do we correct for the injustices of the past without creating new injustices for future generations? These foundational questions that ought to be debated and revisited by all citizens every 50 years, not decided by the interpretation of old rules by unaccountable judges.
We can strengthen our collective commitment to the rules of democracy by separating it from our debates about the rights and responsibilities of citizens and government.
[1] Wikipedia has a great table listing all of the world’s constitutions, sortable by word count and the date it was ratified.
[2] Of course, there were two centuries of case law that set the precedent for the 2013 decision, but my point is that the concept of the Fourth Amendment should not have been included in the Constitution in the first place. Rather, it should have been a federal law passed by Congress that was revised over the years.
[3] Tellingly, there aren’t reliable Native American population estimates.
