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.

Sunday, May 4, 2014

Boston Globe Op-Ed: "From NSA to Race, A Protector of Rights Needed"

The Boston Globe has published my piece proposing the creation of a new office dedicated to protecting civil and human rights.

Update:  More context for the proposal here.

Monday, April 28, 2014

Self-Defense and the Fourteenth Amendment

Dance and sing you black creatures
of Mother Africa.
Move to the sound of the drums
of your forefathers.
Hold on to your drums and beat
them in defiance of the slavemaster and
let their thundering sound awaken those who sleep.
–Mabel Robinson Williams, Transition (1966)

Mabel Robinson Williams passed away last week.  Williams may have been most famous for being married to Robert F. Williams, the controversial former head of the NAACP in Monroe County, NC, but she was an intriguing theorist and fierce activist in her own right.  She recalled that her father slept every night with a pearl-handled pistol under his pillow in case the Klan’s night riders attacked.  As an adult, she served as Secretary of the local NAACP, co-founded a newsletter called The Crusader, organized a mutual aid society called CARE, and helped run Radio Free Dixie.  Mabel called herself a “co-warrior” and “helpmate” to Robert, even as she served as a nurse’s aid and later operated a day care.  When her sons joined a picket against a segregated swimming pool, she sat in the car with guns, keeping one eye out for armed whites.  She and other female members of a rifle club trained to protect their families against the Klan.  Once, Mabel came out of her house with a shotgun and chased off deputies trying to arrest her husband.

Husband and wife worked together on Negroes With Guns (1962), which articulated a theory of self-defense of constitutional rights.  The Williamses “did not advocate violence for its own sake,” nor did they urge “reprisals against whites.”  Instead, they argued that armed self-reliance was compatible with the tactics of peaceful protest promoted by Martin Luther King, Jr. to promote legal change (but they blamed proponents of non-violence for inflexibility in demanding that blacks renounce their right to self-protection).  In their view, armed self-defense was justified because of a “breakdown of the law” in failing to protect black families from armed whites.  As they tell it, Brown v. Board of Education unleashed not only generalized racial unrest in the South, but also a wave of violence directly against NAACP members and their allies.  “[T]here was no such thing as a 14th Amendment to the Constitution in Monroe, NC,” because local officials refused to enforce the law and protect the life, liberty, and property of black families.  Federal and state officials, too, were nowhere to be found.  In fact, many in the community believed that state and local officials were conspiring to deprive black Americans of their constitutional rights. Black self-defense filled this gap in the constitutional order.

Any limited theory of armed self-defense became greatly complicated by the pair’s embrace of Marxist revolutionary ideas about the worldwide liberation of the oppressed.  Negroes With Guns predicted a day when racial violence in the United States became so pervasive that “non-violence will be suicidal in itself.”  It cited with approval the legacy of John Brown favoring the “righteous use” of weapons to “destroy those things that block [the American Negro's] path to a greater happiness in life.”  Linking armed tactics with revolutionary ends blurred the lines between constitutional preservation and constitutional usurpation–a recurring problem that faced all black power groups during this period.  In theory and practice, it became difficult to draw clear lines between self-defense and the armed instigation of foundational change.

After a protest turned unruly and Robert Williams was charged with kidnapping a white family (he claimed to be protecting the family from a mob), the pair fled.  While in exile in China, Robert briefly held the Presidency of the Republic of New Afrika, founded by the followers of Malcolm X after his assassination.  Professor Pero Gaglo Dagbovie recounts that in later years, Mabel became a community historian and keeper of an oral tradition of the Black Power period.  This tradition includes not only the major events that transpired during a tumultuous period of American history, but also popular interpretations of the law.

Cross-posted at Concurring Opinions.