May Day was born from a struggle that ran headlong into the United States Constitution. The workers who built the eight-hour movement, who struck in 1886 and rallied at Haymarket, wanted what many of us want today: an economy that works for those who do the work, freedom from state violence, and a basic guarantee that labor would not consume every waking hour of a person’s life. Time and again, the Constitution — not as an abstraction, but as a functioning legal order with its anti-majoritarian design, its unelected judiciary, and its deep protections for property over people — was the weapon their enemies used against them.
Today, “Defend the Constitution” has become a rallying cry for many who rightly oppose the Trump regime’s lawlessness and contempt for democratic norms. That impulse comes from a real and legitimate place. But the history of May Day asks us a hard question: can a document that has so often been turned against working people truly be the foundation of a movement for workers’ justice? Or do we need a different framework — one equal to the demands we’re making this May Day?
The Constitution in the Time of Haymarket
A call to move beyond the Constitution would have surprised few American workers or poor farmers a century and a half ago. By the late 1800s, the subordinate classes in America had decades of experience on the receiving end of the US Constitution’s antidemocratic and reactionary provisions. The Constitution was built around intentionally indirect systems of elections, a legislature that represented states rather than people, a judiciary whose judges were confirmed by an unrepresentative Senate, and a set of negative freedoms that favored the propertied over the propertyless — and over those once claimed as property. Most workers saw the Constitution not as a foundation for justice, but as an obstacle to it.
The events that gave birth to May Day — the long struggle for the eight-hour workday, the great strikes of 1886, and the Haymarket rally that ended in catastrophe — can be understood as a rebellion against the Constitution and the economic and legal order it reinforced. The eight-hour demand at the heart of those struggles ran up against the Constitution in two distinct ways.
The first was the Constitution’s privileging of negative liberties — the protection of private property, for instance — over positive liberties that would affirm and expand people’s rights to certain opportunities and wellbeing, such as the right to a living wage. In a world of capitalist exploitation, a constitutional order built exclusively around negative liberties handed capital a structural advantage: employers could invoke constitutional freedoms to resist any regulation of the terms they imposed on workers.
The second obstacle was a constitutional order designed to neutralize popular victories won through political struggle. Then, as now, the federal judiciary operated without regard for public opinion, appointed through a constitutional system that flowed through an indirectly elected president and a Senate that represented states rather than people. Time and again, those courts ruled in favor of monied interests over the people, most notoriously in Lochner v. New York (1905), which struck down a state law limiting bakers’ working hours as an unconstitutional infringement on employers’ freedom to contract. When workers turned to state legislatures to win their basic demand for “Eight Hours Work, Eight Hours Rest, Eight for What You Will,” the Constitution handed capitalists useful tools to reimpose the choke-hold.
For decades after Haymarket, the constitutional order continued to deal blows to the workers’ movement. When the Pullman Strike of 1894 threatened railroad capital, President Cleveland dispatched federal troops and obtained from the courts a federal injunction ordering the strike called off. Eugene Debs, the union leader who refused to comply, was imprisoned. The Supreme Court unanimously upheld the use of such injunctions against unions in its In Re Debs ruling, handing employers a powerful new weapon against organized labor. In the same term, Pollock v. Farmers’ Loan & Trust struck down the federal income tax as unconstitutional, while U.S. v. E.C. Knight gutted antitrust enforcement against manufacturing monopolies. In a single year, the Court mobilized the Constitution to crush labor, protect monopoly, and nullify tax reform.
Even before those rulings, people had come to see the Constitution for what it was. As legal scholar Aziz Rana documents in The Constitutional Bind, reformers and radicals of the Gilded Age and Progressive Era widely regarded the Constitution as an antidemocratic instrument to be overcome. The Populists’ Omaha Platform of 1892 defined the Constitution’s fruits as a society where “Corruption dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench.” They named the Constitution’s design as the problem, and many of their demands — a progressive income tax and direct election of Senators most notably — were won only through altering the Constitution, not by accepting or defending it.
Our Constitutional Bind
More than a century later, the Constitution presents most of the same barriers. For all the talk of it being a “living document,” the U.S. Constitution has remained remarkably rigid over time — widely regarded as the world’s most difficult constitution to change. Even the moderate assertions of positive liberties contained in the Equal Rights Amendment ran aground when confronted with the framers’ anti-majoritarian order.
Yet today we face an additional obstacle: a political culture that treats the Constitution as sacred. This reverence — this “creedal Constitutionalism” — narrows our political imagination, provides cover for imperialist adventures abroad, and funnels popular outrage into channels that leave existing power structures intact. It presents what Rana calls the Constitutional Bind.
Our descent into Trump 2.0 is Exhibit A in the case against creedal Constitutionalism. The Constitutionally valid Electoral College installed Trump in 2016 without even a popular plurality. The unrepresentative Senate’s Constitutionally valid confirmation process packed the Supreme Court. That Constitutionally packed Court, in Trump v. U.S. (2024), granted Trump sweeping immunity for “official” acts, emboldening the authoritarian turn of the last sixteen months. The monster was born not against the Constitution, but by it.
The Constitution and Our May Day Demands
And what of our May Day demands? No war. No ICE. Workers over billionaires.
In the weeks before Trump launched the US war of aggression against Iran, an SSRS poll found that only 21% of Americans favored an attack on Iran — yet a Congress unrepresentative of American opinion by constitutional design allowed the administration to forge ahead. That same Congress confirmed the pro-ICE fanatic Markwayne Mullin as DHS secretary at a time when a majority of Americans want ICE abolished. These are not failures of the administration to live up to the Constitution, but rather consequences of the Constitution’s aversion to basic democratic accountability1.
And the stakes are often life and death. While we demand that workers’s needs come before billionaires’ profits, Trump is gutting Medicare and Medicaid to bomb Iran and enrich war profiteers. Meanwhile, it is the US Constitution that grants district-drawing powers to plutocratic state legislatures, allowing them to draw district lines so that they, not the people, have the greatest say in who represents the states in Congress.
We should not avert our eyes from the reality that is before us. We cannot call for workers over billionaires, for abolishing ICE, for taxing the rich to fund healthcare and housing — and simultaneously ask people to put their faith in a document whose mechanisms created and recreate a society in which we must call for these things.
From “Defend” to “Overcome”
None of this means abandoning the legal and political terrain entirely. We should oppose Trump’s defiance of court orders — but not out of faith in the courts as such. We should oppose Trump’s imperialist aggressions in Iran and elsewhere — but not on procedural grounds. We should name specific rights worth defending — but we should root these demands in a universalism that exists independent of any particular text.
“Defend the Constitution” as a first reflex is understandable. We have been raised in a political culture of Constitution veneration. But we must now have the wisdom to choose our words carefully and the courage to state clearly that our allegiance is to a better, future world, not to a document that was designed to fail us.
“Defend the Constitution” cannot be the slogan for a movement that demands workers over billionaires, no ICE, no war, healthcare and housing for all. Our slogan must instead be “A New Constitution for a New and Better Future.”
And to get there, we must build power outside and against the political system — labor and tenant unions, neighborhood assemblies, student groups, and solidarity networks like those being forged today. These are the building blocks of a movement capable of winning a constitutional order based on direct elections, proportional representation, a strong legislature, and the expansion of those positive liberties we have too long been denied. In short: democracy.
That is a constitutional future worth fighting for. It will be won not by defending the Constitution but by building sufficient people power to overcome it.
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