McWilliams Reviews the Book for Tulsa Law Review

Susan McWilliams, Professor of Politics at Pomona College, reviews America's Forgotten Constitutions for the latest issue of the Tulsa Law Review.  She calls the book a "magisterial work...surely one of the most captivating works on American political thought and American constitutional history to be written in the last several years."  Professor McWilliams observes:

Tsai has a good eye for what makes for a good story, and he knows how to put that good story together.... The case studies are captivating, each on its own merits. Tsai could have merely walked through the narration of some of these stories and written a memorable book. For weeks after reading America’s Forgotten Constitutions, I badgered my friends and loved ones with accounts of Etienne Cabet’s Icaria, an attempted agrarian socialist republic made up mostly of French immigrants in the late 1840s and early 1850s.... I imagine that Tsai’s chapter on Icaria alone would make a valuable contribution to many courses and conversations about American political thought.... What is remarkable is that in this sense, the Icaria chapter is not exceptional within the book; all the case studies here beg for further study.

She goes on to consider the broader theoretical implications of the book:

Tsai may be at his most intellectually provocative when he is operating at the level of this kind of broad analysis, using his case studies and comparisons to venture some important thoughts about the traditions of American constitutional order in particular and the traditions of written constitutionalism and popular sovereignty more generally. That is what I take to be the third level of the story in America’s Forgotten Constitutions.... That there is a tradition of alternative constitution writing in the United States almost paradoxically demonstrates the strength of the standing constitutional order. This form of resistance to this Constitution is, oddly enough, also a form of reverence for its constitutionalism. It is subversion that should please the powers that be.

The entirety of Professor McWilliams's review can be found here.

My Reply to Aziz Rana's Book Review

The Texas Law Review has graciously agreed to publish my response to Professor Aziz Rana's thoughtful review of America's Forgotten Constitutions.  It can be downloaded from here.   A snippet from my response:

Nowhere in the book do I claim that American constitutional law, understood as an ideological and social practice, evolved in a way that was inevitable or predictable. Nor has the original ethical character of the U.S. Constitution simply been revealed over time.  To steal from King, I do not think that the moral arc of constitutional law "bends towards justice."...

While they are competitors in an important sense, in truth radicals need reformers.  The success of moderates playing within the system creates an opportunity for radicals, who can behave parasitically on reformers' efforts by engaging an already energized electorate. 

Professor Rana's original book review can be read here.

Professor Aziz Rana Reviews America's Forgotten Constitutions for Texas Law Review

Professor Aziz Rana (Cornell Law) has reviewed America's Forgotten Constitutions for the Texas Law Review.  A snippet of that review:

The book is a remarkable feat of excavation, one that offers a much-needed corrective to the conventional histories of American constitutionalism—histories that deemphasize the vitality and importance of popular suspicion toward the federal Constitution. It thus enriches—quite dramatically—the current literature on contemporary constitutional opposition by implicitly placing today’s critics within a long-standing American struggle over the compatibility between existing institutional arrangements and classic principles of popular sovereignty, self-government, and self- authorization.... According to Tsai, the discursive tradition of American constitutionalism has been marked by many simultaneous projects of constitution writing. The Framers may have “unleashed” notions of popular sovereignty and written constitutionalism, but they could hardly control its direction in the hands of ordinary citizens.

The entire review can be found here.

Professor Sophia Z. Lee's Review in the Journal of American History

Professor Sophia Z. Lee (Penn Law & History) reviews America's Forgotten Constitutions in the June 2015 issue of The Journal of American History:

Tsai offers an engaging series of eight chronologically progressive case studies .... Tsai’s second argument, [that, as the conventional sovereign developed, the available modes of dissenting constitutionalism shrank, becoming more expressive and less institutionalized], is a novel one that merits exploration.... His individual case studies also provide new dimensions to familiar tales (for example, postwar internationalists’ blueprint for a world government) and new tales (for instance, the black nationalist Republic of New Afrika’s claim to the Deep South). Historians of the groups that Tsai studies may find his analyses of their constitutions illuminating while historians of black nationalism, postwar internationalism, and contemporary white supremacism will find commendable primary source research on these subjects.

Read the full review (behind a pay wall) here.

Choice Reviews Recommends America's Forgotten Constitutions

Writing for Choice Reviews, H.J. Knowles of Skidmore College recommends America's Forgotten Constitutions:

As his subtitle indicates, Tsai (American Univ. Law School) brings the reader's attention to examples of popular constitutional pushback by groups who refused to worship the Constitution. In order to resolve societal shortcomings and crises of popular sovereignty they identified, these groups sought radical and idealistic salvation in the crafting of alternative constitutions. The book features examples from throughout American history--from the 1830s creation of the Republic of Indian Stream through the 2006 Aryan nation efforts to forge a new constitutional vision in the Pacific Northwest. In addition to painting rich portraits of those examples, Tsai makes useful observations about the conceptual similarities and differences among his case studies.... [The] volume admirably accomplishes its goal of spotlighting some of America's forgotten constitutions.

Recommended for general readers, graduate students, and research faculty.

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 republic—were 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 sovereignty—an exercise of racial nationalism, if you prefer—rather 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.

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.

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.

Photos from April 10, 2014 Book Reception at American University

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.

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.

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.

My Essay in the Boston Globe in honor of Independence Day

Go here.

Read the Constitutions Featured in America's Forgotten Constitutions

For readers interested in a closer look at the documents discussed in my book, America's Forgotten Constitutions, I have included links to the constitutions below.

1.  The Indian Stream Constitution (1832)

2.  Icarian Constitution (1850)

3.  John Brown's Provisional Constitution and Ordinances for the people of the United States (1858)

4.  Constitution for the Confederate States of America (1861)

5.  Constitution for the State of Sequoyah (1905)

6.  Preliminary Draft of a World Constitution (1947)

7.  The Code of Umoja (amended 1985)

8.  Northwest American Republic Constitution (2006)

Seen on the Shelf at Politics & Prose

Write-Up in Hometown Paper

From the Port Townsend Leader.

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.

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.

Contested Ideas About Consent

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 crimes).

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.

John Brown 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. government).

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 owe allegiance?


Cross-posted at Concurring Opinions.

Pop Matters Review: "America's Forgotten Constitutions" Bear Potent Messages for Our Times

Hans Rollman reviews the book for Pop Matters.  From the review:

Robert Tsai’s new study, America’s Forgotten Constitutions, offers a refreshing and innovative take on a centuries-old topic . . . .

This is not merely a collection of assorted oddities or constitutional anecdotes from America’s political margins, however. Taken together, they comprise a chronological narrative of some of the key issues galvanizing political activism throughout the past 200 years of American history. . . .

By exploring the efforts of those who went beyond mere intellectual debate, and who actually tried to build alternative nations or states within the US, Tsai offers a unique vantage into the ideological struggles underpinning American history and politics. . . .

Tapping into the popular imagination through the various pop culture devices of the era was essential for many of them in generating support and working through their ideas; indeed, the constitutions themselves–while articulated as legalistic devices–might equally be seen as expressions of popular culture and collective imagination. . . .

The style weaves that delicate balance of accessible yet scholarly language. It’s fine fodder for the pop history or politics buff, as well as a useful background text for more serious scholars. It’s an engaging read: enjoyable and thought-provoking at the same time.