One of the challenging things about studying popular constitutionalism is that theories of power, community, and tactics can be all jumbled together.
For instance, from what I can gather,
Cliven Bundy appears to be a rancher who holds a strong, individualist
view of property rights and espouses a theory of government in which the
local somehow trumps the national (and likely the state as well).
Tactically, he favors the use of private force in defense of
constitutional rights and powers (he also believes that he is entitled
to the assistance of local and state authorities to resist the federal
government). For now, his statements justifying the use of force seem
to be limited to repelling invasions of property (his cattle, money) and
personal security (his body, the safety of his family), so they can be
plausibly defended on self-defense grounds (in natural law or other
ethical terms, not based on statute or a written constitution). His
vague call for a "range war" muddies his claim to principled use of
extralegal tactics and opens him up to charges that he is advocating
organized violence against the state, so you can bet his next words and
actions will be carefully scrutinized (recall that John Brown was tried
for insurrection, and black nationalists were often accused of such
What's harder to figure out is Bundy's theory of
consent. Every popular constitutionalist must present a coherent theory
of consent to rebut arguments that simple lawlessness is being
advocated. Secessionists favored the "compact theory" of consent, which
holds that each state agreed to the formation of the U.S. Constitution
and that each state could withdraw its consent. Abraham Lincoln and
defenders of the Union rejected this approach, saying that the people in
the several states gave their consent and that only the people as a
whole could dissolve the bonds of political community.
argued that groups of Americans (slaves, freedmen, and abolitionists)
joined by their conviction and shared tragedy could disaffiliate from
the existing form of government without committing treason. From there,
group-based theories of consent flourished. Modern black nationalists
and white separatists argue that racial or ethnic identity provides the
basis for giving or withdrawing consent. Typically, disgruntled
Americans signal their disaffiliation through a public act: meeting in
convention and signing a public declaration.
What makes sovereign
citizens and their ilk different is that they often argue that each
individual has the power to withhold the consent of the governed. For
many observers, this is a theory of consent that descends into anarchy.
There is also a more selective, and sometimes mysterious, quality to
the extent of their disaffiliation. Often, such figures "declare
independence" when pressed, during criminal trials or litigation over
taxes or property rights. Others, without any prompting, file documents
in traditional government offices announcing their unorthodox legal
views, sometimes over and over again.
Bundy has said
he "respect[s] the federal government" but also that it "doesn't have
its place in the state of Nevada . . . and Clark County, and that's
where my ranch is. The federal government has no power and no ownership
of this land." Unless someone sees an open and notorious act of
disaffiliation from the federal government, at this point it looks like
he is engaged in selective (issue by issue?) rejection of jurisdiction,
backed by an account of political structure that is clearly subversive
but not fully implemented.
The task of ascertaining one's
constitutional theory is further complicated when more mainstream
figures start using the language of popular sovereignty. It can be hard
to figure out how much an elected official believes and how much the
official is simply catering to attitudes that are perceived to be widely
shared by constituents. See, for example, this candidate for Governor of South Dakota,
who favors state nullification of unjust federal laws, admires Bundy,
and shares his belief that sheriffs are the highest law enforcement
officials in the land. Lora Hubbel plainly has not disaffiliated from
state government, holds radical localist views of government, supports
extralegal tactics, and holds the federal government in antipathy (but
it's unclear whether she believes she owes allegiance to the U.S.
So, the next time you hear a political aspirant,
activist, or lawyer deploy arguments about popular sovereignty, ask that
person: (1) what is the basis for making such claims; (2) what tactics
are justified; and (3) to what government(s), exactly, does he or she
Cross-posted at Concurring Opinions.