Thursday, February 26, 2015

Civil War Book Review's Take on America's Forgotten Constitutions

The Civil War Book Review has published a review of America's Forgotten Constitutions.  Professor Chris Barker finds the book "a very impressive, thought-provoking study of divergent forms of popular sovereignty."  Overall, he deems the historical case studies to be "uniformly insightful and even-handed" with the analysis "largely avoid[ing] clause-by-clause drudgery."

A couple of the reviewer's observations merit a brief response.  First, Professor Barker expresses concern that the account might "invite[] a degree of confusion about the legal status of the union" because I emphasize that the Founding began a project of creating one American political community.  But here I think he misunderstands my approach, which is concerned not with narrow questions of legality as such but with the broader process of making the revolutionary utterly conventional.  I never claim "uniform national citizenship" to be the Founders' original goal.  The Framers themselves used the terms "citizen," "people," and "person," throughout the debates and the resulting Constitution, revealing a desire to create a single political community (nation-state) and not merely a more effective government, while leaving the particulars of legal "citizenship" unresolved and in flux.  So I don't read "the 1787 Constitution as an ideologically dominating, exclusionary document," as Professor Barker suggests, but rather contend that some defenders of the Constitution (liberal nationalists and practitioners of ethical sovereignty) pushed the tradition and the concept of community in a thicker direction after the Founding.

Second, Professor Barker states that I see "no ethically transformative content to the Confederate vision."  This is too strong.  It is true that some slaveholders argued that slavery was a morally worthy institution.  These fire-eaters, whose ideas I discuss in the book, believed in the moral rightness of slavery just as fervently as abolitionists believed the practice to be spiritually bankrupt.  For these popular thinkers, secession represented an opportunity for moral restoration.  But a funny thing happened on the way to the Confederate Constitution: while slavery itself was preserved by that document, many stronger provisions--including those that would help keep the Confederacy pure and perpetual as a slaveholding republicwere rejected.  The moral dimensions of that vision were partially implemented at best.  This is why I ultimately believe that the Confederate Constitution is more aptly described as an example of cultural sovereigntyan exercise of racial nationalism, if you preferrather than an illustration of ethical sovereignty in action.  When we compare the actual features of that Constitution with other constitutions containing stronger religious or other ethical imperatives, it only reinforces the sense that the Confederate Constitution appears remarkably like the 1787 Constitution, with a few provisions altered to restore control over the political economy of slavery.  That American original, too, ended up a thinner exercise in self-governance, despite the fact that some proponents had stronger ideas of justice and virtue.

Friday, January 30, 2015

The Harvard Law Review on America's Forgotten Constitutions

The editors of the Harvard Law Review have published this capsule review of America's Forgotten Constitutions:
Professor Tsai presents an octet of fascinating tales revolving around these alternative constitutions, drawn up by individuals (like radical abolitionist John Brown), factions (recent Aryan separatists in the Pacific Northwest), and even entire peoples (the early twentieth-century Cherokee Sequoyah movement). Rather than serving as discrete vignettes, the eight stories are interconnected, and, to an even greater degree, tied to the 1787 Constitution. Southern secessionists, for instance, borrowed almost everything but their categorical protection of slavery from the 1787 charter. All in all, Professor Tsai offers an enlightening, refreshing take on constitutional history that is accessible to legal veterans and newcomers alike.

Monday, December 8, 2014

Lessons from the Alt-Constitution

Brian Doherty has this provocative review of America's Forgotten Constitutions in the January 2015 issue of Reason.  Putting aside the fact that the reviewer has an obvious preference for a libertarian-conservative constitution (praising Hayek and damning the New Deal revolution), he does try to extract several lessons from my book about how to initiate constitutional change.

The advice he gives to libertarian reformers is: (1) find legal spaces to subvert the dominant political order; (2) avoid violence; (3) don't become obsessed with making cultural changes, which are difficult in a pluralistic society; and (4) keep your expectations low: don't expect that interfacing with an existing legal regime will produce results.  The combination of these lessons seems to support targeted nonviolent resistance of the legal order, coupled with non-overt forms of disaffiliation and alternative organization.

I think these are fair lessons to draw from my book, with the strong caveat that every episode in alternative lawmaking is a contingent event, with its own probabilities of success.  It also bears keeping in mind that one's tactical orientation will depend ultimately on one's goals, motivations, and substantive theories of law.  So I expect that someone with a different set of philosophical commitments can read my book and draw a slightly different set of lessons.  I do make some observations about tactics in the book, but they are general observations rather than fixed and universal guidelines for how to get things done.  For example, I don't say that violence never works (it obviously works under certain circumstances, not always in the way that it is intended, and there is always a price to be paid).  

It's fascinating to see what historical lessons and tactics for legal change seem most appealing to a disaffected libertarian, who views government as something that "does pretty much whatever it wants, under whatever excuse it pleases, and all too frequently gets away with it."  Achieving a minimal state, or at least arresting the growth of the modern administrative state, will take an openness to methods and a certain flexibility in making allies inside and outside the political system. 

The four lessons identified by Doherty don't exhaust the possible lessons from the case studies I discuss.  But they represent a thoughtful way to begin that conversation.

Thursday, September 18, 2014

Livestream of Today's 12 pm EST Book Talk at the National Archives

My book talk today in honor of Constitution Day at the National Archives will be carried on YouTube live here.

Thursday, September 4, 2014

Book Talk and Signing at National Archives Sept. 18 12 p.m.

Please join me in the McGowan Theater of the National Archives September 18, at noon, for a book talk and signing.  The address is: 700 Pennsylvania Avenue NW, Washington, D.C. 20408.  Reserve a seat here.

Friday, July 4, 2014

An Independence Day Book Review by the Daily Beast

Tom Arnold-Forster reviews America's Forgotten Constitutions for the Daily Beast:
America’s Forgotten Constitutions: Defiant Visions of Power and Community, by Robert L. Tsai, is a history of constitutions written instead and in place of the U.S. Constitution. Looking at a diverse group of “folk legal theorists” from the early nineteenth to the early twenty-first centuries, Tsai assembles a collection of eight alternatives to the federal republic imagined in 1787. It’s a nicely conceived book, with each “defiant vision” taking up a chapter. And it’s engaging to read: Tsai is a law professor but avoids legalese. He writes briskly but attentively.

He shows that “We the People” has been a problem from the start, and that much has hinged on exactly how plural the pronoun is thought to be....

Rather than dismissing these ideas as silly utopias, Tsai treats them as part of the American legal tradition. And the result is counterfactual in the best sense: an array of unfamiliar and unsettling ideas, which show that the “original meanings” of 1787 (or their malleable afterlife in a “living constitution”) are not the only ones to have existed....

So Tsai gives us a history “characterized by adaptation and reversal, innovation and regression, fragmentation and reorganization.” He suggests that the United States is less about stable liberalism and expanding freedom than aggressive democracy and applied power....his picture is far richer than the grim founder worship usually found in American political orthodoxy.

For Tsai’s constitution writers, the U.S. Constitution stands as an obligatory model, something they necessarily define themselves in relation to....And all, in the end, underline just how largely the Constitution figures in the American political imagination: less a charter of freedom than a document of power.
The full review can be found here.