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.