Thanks to Deven, Gerard, and everyone else at Concurring Opinions for
the warm welcome. I plan to blog a bit about the new book,
America’s Forgotten Constitutions, as well as some matters related to ongoing research.
A few words about the conception of the book. It combines American
history and legal theory in a way that I hope tells us some new things
about events and ideas that have already received some scholarly
attention. It also analyzes some events in constitutionally significant
terms when they previously have not received such treatment (e.g., the
world federalist movement, the recent drafting of an Aryan
constitution). In doing so, the book seeks to shed light on certain
recurring theoretical questions about our constitutional process, writ
large. The primary organizing themes are the dual meta-principles of
written constitutionalism and popular sovereignty, combined by the
Framers of the U.S. Constitution and unleashed on the population. I’m
interested in how average people adapt these basic principles to forge
new relationships and communities, develop novel procedures for
authorizing a constitution, and defend extra-legal tactics.
The book’s
ambition is to go beyond current treatments of “popular
constitutionalism”–so we can have an honest discussion about the energizing
and dangerous aspects of our political tradition. I pick eight
examples where Americans wrote constitutions at various important
moments in time, in order to explore these questions. The colorful
cast of characters
consists of squatters, native Americans, slaveholders, abolitionists,
socialists, world federalists, black nationalists, and white
separatists. I explore how the functions of writing and notions of
sovereignty mutate after the Founding period.
Allow me to begin by suggesting that these constitution-writing
episodes push us to reevaluate what we think we know about the procedure
for making constitutional law. Just to get the ball rolling, much of
the literature identifies the following ways of altering fundamental law
(let’s note but for now bracket the crucial lurking question of the
relative legitimacy of each approach):
1. Making foundational law during a true revolutionary moment,
marked by political breakdown or some other break in historical time,
when procedural questions are up for grabs along with substantive
commitments.
2. Formally amending a constitutional text (in the U.S.
Constitution, according to the process outlined in Article V) without
rejecting the continuing legitimacy of the legal order created.
3. Creatively using conventional national institutions (say, by one
party winning successive elections, enacting transformative laws, making
key judicial appointments, winning landmark decisions through
litigation). Again, this is done without rejecting the authority of the
overarching legal order.
4. Gaining control of key bureaucracies (White House, OLC, DOD) or
forging government-private relationships (such as Federalist
Society-DOJ-Judiciary). These social networks may not be lasting, but
the goal is to achieve major shifts in substantive law rather than to
overthrow an entire system.
5. Creating a social movement that signals popular discontent,
shapes public debate, forces national institutions to rethink governing
commitments.
What are the protagonists in my stories doing? For the most part,
options # 2, # 3, and # 4 elude their grasp. Typically, they compose a
small group holding marginalized ideas, so it is not realistic to
dominate any particular political party, win successive elections, or
gain ideological control of key institutions. Even where, as with the
Confederates, they enjoyed a degree of access to formal power at the
national level, they have given up on the possibility of making
fundamental law within the conventional rules. Option # 5 is possible
for a few of my groups, but in the main they find themselves on the
outliers of oppositional movements and trends. In fact, the act of
writing a constitution signals their differences with other dissenters
in terms of state-building goals and tactics, not to mention the depths
of their despondency that legal change through conventional means is
possible.
None of my popular legal theorists believes that anything in the 1787
Constitution or our political tradition requires preapproval to write a
new constitution; it merely dictates how rewrites of the existing one
must be accomplished. The right to write is inherent and fundamental.
They also agree that the people have the power to alter the basis and
terms of political community. Where they tend to differ is over tactics
and procedures.
For some–let’s call them the classical revolutionaries–they believe
themselves to be engaged in process # 1. They confidently point to
ample evidence of political breakdown, and argue that they are justified
in authoring a new governing document and coming up with completely new
protocols for deliberation and ratification. This best captures the
slaveholding statesmen who formed the Confederate States of America,
though their theory of consent is vigorously disputed by Lincoln and
other defenders of the 1787 Constitution.
At first blush, the classical situation also seemingly captures John
Brown’s proposal for a new republican form of government and the
Republic of New Afrika’s constitution created by the followers of
Malcolm X after his assassination. In both cases, people’s conventions
determined that the original Constitution did not bind them, either
because it was irreparably broken due to slavery and racial subjugation,
or because the Framers never gained the rightful consent of the
governed (i.e., slaves and former slaves).
Here’s where it gets complicated. Most people don’t agree the
country faces a true revolutionary moment. Each dissident group gains
supporters, but never enough regular folks to threaten the national
legal order as a social movement, or enough elites to control any formal
levers of power. Each struggles with the question of violence as a
tool for constitutional change, ultimately concluding that under extreme
circumstances targeted violence is justified by the political
tradition. Force, they believe, can be constitutionally used to
liberate slaves or defend against private and public acts of violence,
inequality, and degradation. Each group has national aspirations: in
the case of John Brown, he hopes his constitutional vision will supplant
the tottering slave-holding vision propped up by the High Court; for
Imari and Gaidi Obadele, the goal is to convince the U.S. to give up the
former slaveholding states so a black republic can be established.
As they await better conditions for revolutionary consolidation,
created by themselves or others, they decide to start living out their
constitutional principles. In other words, their constitutions are not
simply pieces of paper to be discussed one day if enough people are
intrigued. This shift toward social implementation is somewhat seamless
for their respective communities because they espouse a strong dose of
what I call “ethical sovereignty”–the notion that true legal authority
derives from shared moral beliefs. They begin to sustain law-based
communities despite lacking control of territory and not completing the
tasks of authorizing and implementing their constitutions. In fact,
while they see themselves as pursuing strategy # 1, I think both groups
at some point transition into a different strategy of constitutional
change: modeling an alternative community. The Republic of New Afrika
lasts longer than John Brown’s group, mostly because Brown decided to
force the action at Harpers Ferry, and his execution decimates that
nascent law-based community. But New Afrikans are also better at it in
that they reach more deeply into the recruitable population.
Once we see that dissenters can use imperfectly authorized
constitutions to model alternative communities (let’s now call it
strategy # 6), we start to notice other things. Modeling derives from
the same basic principles of popular sovereignty and written
constitutionalism. Modeling can stand alone or supplement any of the
other strategies for constitutional change. Innovative use of state and
local laws (not simply national laws and institutions) can facilitate
the formation of alternative constitution-based communities (more on
this in a future post). Suddenly, we start to notice a lot more groups
of people writing constitutions, for all sorts of reasons and to varying
degrees of success.
Cross-posted to Concurring Opinions.
