Constitutional Revival: On Jedediah Purdy’s “Two Cheers for Politics”

DUKE LAW PROFESSOR Jedediah Purdy is a man with a plan for political reform, and he outlines this plan towards the end of his latest book, Two Cheers for Politics.

Purdy’s primary goal is to renew the United States Constitution, which he views as having lost much of its legitimacy, partly due to the exclusion of some now-enfranchised groups (women, Black Americans) from formulating the United States’ founding documents. The people governed by the Constitution thus now differ substantially in their characteristics from those who originally devised it.

Purdy also (almost uniquely in the present time) rejects both the originalist and the “living document” methods of interpreting the Constitution, viewing both as giving far too much power to the “nine rather old lawyers” who sit on the Supreme Court. In a democracy, this power to determine the content of the basic law of the land should belong to living people, not judges or long-deceased and not terribly representative Founding Fathers. Purdy proposes giving this power back to the American people by holding a constitutional convention, the results of which would be put to national referendum every 27 years. This convention would not take place among state representatives but would be composed of elected, appointed, and/or lottery-selected citizens. In this manner, each new generation would determine its own Constitution, possibly (although Purdy isn’t committed on this) passed by a supermajority of 55–60 percent of the voters.

In addition, and this is possibly the point Purdy returns to most frequently throughout the book, the Constitution must be passed by all “the people,” by which he means every person considered “resident” in the United States, regardless of citizenship or criminal record.

Purdy’s commitment to majority rule is reiterated strongly and eloquently throughout the book, a rarity in today’s academic thought. However, despite this strong ideological commitment, it would seem that the author sometimes gets in his own way when it comes to realizing the ultimate goal of self-rule.

While Purdy’s plan for constitutional revival is the centerpiece of this book in terms of original content, it comes very late in the text. These practical and specific ideas for reform are preceded by a kind of survey course of Western constitutional theory, ranging over thinkers from Rousseau to Locke to Tocqueville.

Although the desire to ground reform in prior constitutional theory is understandable, the writing here doesn’t always fully connect to the more concrete ideas presented at the end of the work. For example, in one of the more interesting passages, Purdy dwells on the political thought of Thomas Hobbes, casting the 17th-century author of Leviathan not as a hardened authoritarian but rather as someone who, having lived through tumultuous times, recognized the necessity of a state that provided order. Self-determination might be nice, but order — of any kind — was preferable to chaos. This segues into a discussion of Rousseau and his famous “forced to be free” dictum, and it is easy to see what Purdy is driving at: everyone is ultimately subject to political coercion (whether exercised via a monarch or a democracy); the only thing up for grabs is the source of that coercion.

These are extremely pertinent thoughts to our present situation, but while the fingerprints of these ideas on Purdy’s ultimate plan are there, a truly specific, laser-focused application that would make such lengthy reiterations of our most celebrated theorists seem worthwhile is lacking. The reader is left with “the drift” but not necessarily the point.

The bigger obstacle to the realization of Purdy’s suggestions for reform, however, will likely be the partisan manner in which it is framed. Throughout the book, portraits of American history or exegeses of political philosophers are interspliced with yet another reminder of the evils of Donald Trump and, indeed, all things right-wing. Purdy does this in a gentle way — there is none of the unhinged self-righteousness of social media here — but Trump’s vote share is above 45 percent of the general population. Is it necessary for these voters to come to the realization that they are evil in order to see the appeal of a constitutional convention? Moreover, is this likely to occur?

This attitude is all the more startling as Purdy himself admits that many Barack Obama voters switched their vote to Trump. Surely, what can switch can switch back, but this seems unlikely to ever happen when these voters are required to take the Road to Canossa just to read Purdy’s plan.

Oddly compounding this is that Purdy is by no means blind to the failings of mainstream Democrats and the neoliberal policy that has animated the party’s establishment for the past decades. Thus, for a plan that is all about majority rule, Purdy makes little effort to present it in a way that would appeal to that majority.

This is a shame, because none of this has anything to do with the basic content of Purdy’s proposal — to hold a constitutional convention every 27 years and a referendum based on its outcomes. It just has a lot to do with the assumptions about the outcome of such a process and the inevitability of it aligning with the current progressive agenda.

The recent referendum on Chile’s new constitution should be instructive here.

In 2020, Chileans voted with a 78 percent majority to replace their Pinochet-era constitution (turnout 51 percent). A constitutional convention, composed largely of independent actors elected by the general population (overall turnout 43 percent; 22 percent among Indigenous voters), was charged with drawing up this new document. Tasked with an important mission at this vital turning point in the nation’s history, these delegates showboated their way to the most “progressive,” “amazing,” “radical,” “awesome” constitution ever. This culminated in including over a hundred rights in the new constitution and completely redesigning the system of government. Progressives (undeterred by the low participation rates throughout the process) somersaulted over each other to celebrate this work of art literally right up until the moment the proposed constitution was defeated by a two-thirds majority in a national referendum in September 2022 (turnout 85 percent and voting was mandatory).

The United States may not be subject to the same detached zeal that took hold of the constitutional convention in Chile where liftoff from planet earth was apparently achieved, but the experience does point out some of the downsides of reforming via a constitutional convention.

The first is that passing one reform is difficult, but passing a package of reforms is even more difficult because everyone who strongly disagrees with one measure will reject the entire package. Is it not wiser to focus on formulating a specific law one would like to change and then, should the Constitution get in the way of that change, consider changing the Constitution in such a way as to permit that law? This makes everything very clear and specific. It takes full advantage of the referendum as a vehicle to thoroughly consider the issue and allows that fluidity to occur, which Purdy also sees as such an instrumental part of democracy.

Many Trump supporters, after all, are rather unsupportive of foreign wars, and, indeed, globalization generally. Slicing off specific issues like reducing American military spending (or perhaps just returning greater power over warfare to Congress) has a higher chance of achieving majority approval now than it has for a long time, and such measures would certainly be a major success (also for the progressive Left) if passed. And one reform can always be followed by another.

Another point to consider is that constitutions are by their nature generally abstract. Thus, rewriting a constitution doesn’t necessarily give people more power. The Chilean Constitution with its scores of rights would likely have given judges more power because it moved more things into the justiciable sphere. Judges, after all, interpret the Constitution. If people were to truly take the place of judges, this is the task they would have to do — interpret law on a case-by-case basis. Otherwise, under Purdy’s plan, one risks enduring 27 years of a judicial interpretation that was counter to the voters’ intention (unless, of course, there is a realistic prospect of amending between conventions).

As this indicates, there’s a lot to be fleshed out, not just in actually writing a constitution, but even in planning a constitutional convention. Two Cheers doesn’t so much touch on these issues as take the correct position for granted. On the issue of federalism (intrinsic to the issue given the current process for amending the United States Constitution), Purdy essentially argues for its wholesale abolition, irritated by the power of smaller states to hold up measures desired by the majority on the United States’ more densely populated coasts.

However, such geographical representation is (still) rooted in genuinely different life circumstances. How are the people of New York City and Los Angeles, having barely seen a live chicken in their lives, much less possessing the ability to differentiate between wheat and barley, going to become the de facto sole arbiters on agriculture, one wonders. We’ve seen these issues in Europe, where the urges of metropolises to fight climate change in specific ways (a topic mentioned repeatedly in this book as a given goal) have clashed with the farmers they threaten to put out of business.

In addition, Purdy’s insistence that all people resident in the United States be given voting rights, regardless of citizenship, seems impractical. While many people do live and work in the United States for years without acquiring citizenship, millions also live there with no intention of ever becoming citizens or even of staying very long. Since such people will not be accountable for their decisions and may have only been in the United States for a few months before voting, one wonders what incentive they might have to take their vote seriously or how others would regard it as legitimate.

Despite all of this, Two Cheers outlines really a quite exciting plan, a vision of an American future that is, for once, non-elitist. The last successful constitutional amendment passed in 1992 (it was proposed in 1789) and the one before that passed in 1971 — before Purdy was born. There is definitely something to be said for institutionalizing a process of grassroots constitutional change so that it happens at regular intervals, given as legislating at its highest level has ground to a halt in the United States and politics is now endlessly litigated instead — frequently by monied interests.

While most people around the world would be hard-pressed to name their Supreme Court judges, in the United States they have become celebrities in their own right. Many warriors in both political camps devote themselves solely to getting the “right judges” appointed — despite the fact that judges are supposed to be bound solely by law and act independently. Purdy is right to address this counter-majoritarian difficulty head-on.

If anything, his idea for bold reform deserved to be sketched out in more detail in this book. We all know what Hobbes and Rousseau said. They were, after all, brilliant and incisive thinkers to whom we all owe a debt. But like the Framers, they are long-dead and, so far as we know, not even aware of present circumstances. It would be more interesting to hear what Jedediah Purdy says when the rubber hits the road. The proposal of Two Cheers is not a bad idea — it’s just not a full idea.

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Dr. Roslyn Fuller is a research associate at Waterford Institute of Technology in Ireland. Her latest book, Beasts and Gods: How Democracy Changed Its Meaning and Lost Its Purpose, was published by Zed Books in November 2015.