This Essay challenges the view that although the actual and everyday Constitution may be riddled with real injustices, progressives should maintain faith in an idealized document and should see the shared language of constitutionalism as the privileged instrument for redeeming political life. Instead, it argues that faith should reside in an ideal of effective and equal freedom alone. Indeed, such a commitment may at key moments require pursuing constitutional rupture and rejection. The Essay highlights this point by reinterpreting two central decisions from the Civil War and Reconstruction eras: The Prize Cases (1863) and Ex parte Milligan (1866). These cases underscore how during a period of social transformation constitutional discourses had the real effect of constraining and even undermining meaningful change. The lesson for the present is that progressives should view their relationship to constitutional traditions strategically — to be defended when those traditions serve emancipatory purposes and questioned or discarded when they do not.
Rana, Aziz, "Freedom Struggles and the Limits of Constitutional Continuity" (2012). Cornell Law Faculty Publications. Paper 1071.
Published in: Maryland Law Review, vol. 71, no. 4 (2012).