To understand what is unfolding, it is necessary to grasp the content of the US constitutional order. This includes a series of ideological and institutional components, in line with what Swedish sociologist Gunnar Myrdal in 1944 famously labelled the ‘American creed’ – the idea that the United States stood for the promise of equal liberty for all. At a time of global rivalry with the Soviet Union over a decolonizing world, national elites explicitly rallied to this creedal constitutional frame. Its constitutive elements encompassed a reading of the Constitution as committed to the steady amelioration of racial inequality grounded in principles of anti-discrimination; an anti-totalitarian account of civil liberty and speech rights; a defence of market capitalism, partially hedged by a constitutionally entrenched regulatory and social welfare state; an embrace of institutional checks and balances, with the federal courts, particularly the Supreme Court, as the ultimate arbiter of the law; and a commitment to US global primacy organized through robust presidential power.
This iteration of American constitutionalism had both a domestic and international face. Domestically, it created a set of shared institutional and cultural practices. Republicans and Democrats understood themselves as jointly stewarding an American hegemonic project against the Soviet Union. Officials could toast their electoral foes across the partisan aisle, because whatever their internal differences, politicians and judges both had drunk deeply from the well of American exceptionalism. Whatever the election outcome, both sides were bound, above all, by a common national narrative. This narrative – deepened by suffering and victory during World War II and tested through ongoing rivalry with the Soviets – assumed the genius of the constitutional founders, the near-ideal quality of American institutions, and the unfolding internal progress of American society.
Internationally, this narrative also allowed the US to project authority on the global stage – propagating the mythology that its constitutional commitments to equal liberty were interests shared by everyone around the world. The result was an American postwar order marked by two interconnected features – a focus on rules-based legality, alongside the continual American defection from those rules, whether in Vietnam or Gaza today. National elites saw US-generated multilateral institutions as an expression of underlying American constitutional values, and therefore critical to uphold. But they also viewed global security as requiring the US to serve as an international backstop. In effect, this created an endless balancing act between promoting the rule of law and disobeying it through military actions and interventions, covert and overt. Resulting violations were justified as necessary to preserve collective stability – no matter that things looked very different for those in the crosshairs, especially in the previously colonized world.
That a distinct twentieth-century US constitutional order emerged in parallel with the Soviet Union is often elided, thanks in part to the peculiar features associated with American institutions and its national narrative. For starters, the US Constitution is notorious for being perhaps the hardest in the world to amend. Constitutional change does not typically occur through formal alterations to the 1787 document, let alone through its wholesale replacement, but through shifts in court-based interpretations of the existing text along with the implementation of landmark pieces of legislation that establish new terms for collective life. Indeed, the present order was consolidated through the passage of key mid-century bills – the Social Security Act, the National Labor Relations Act, the Civil Rights Act, the Voting Rights Act, the Medicare Act – in conjunction with Supreme Court rulings that upheld their constitutionality. Together, Congress and the courts broke substantially from the preceding racial and economic order. Yet, crucially, this meant that there was no rewritten twentieth-century Constitution separate from an earlier one.
At the same time, the shared story about these legal shifts was that they represented the fulfilment of an inherently liberal national essence. In truth, the consolidation of this order had been a contingent product of domestic and global mid-twentieth-century developments, diverging markedly from the long-established structures of explicit white-settler supremacy in the United States. But that reality did not fit with the emerging national narrative – which presented the US as committed, from its founding, to the egalitarian principles of the Declaration of Independence, and thus on an ineluctable path to this new model.
