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Author: Robert Tsai

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Signing off

AFC-cover      Thanks to all for having me back to Concurring Opinions.  I’ve enjoyed the visit immensely.

During my stay, I blogged about the conception of my new book, America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard, 2014).  I discussed ideas of constitutional formation and reorganization, alternative theories of popular consent, and certain black nationalists’ view of the Fourteenth Amendment (and even guns and self-defense).  I analyzed Cliven Bundy’s theory of rancher sovereignty, which is shared by many who rallied to his armed defense against the Bureau of Land Management (here and here).  I advocated the creation of a new national office, the Tribune of the People, whose sole responsibility would be defending civil and human rights. Finally, I discussed the Supreme Court’s recent decision on legislative prayer as an example of institutional withdrawal, as issues of prayer were thrown back to the hurly-burly of the public sphere.

News about America’s Forgotten Constitutions can be followed on my author’s page, book blog, facebook, or twitter.  On September 18, 2014, during the week celebrating the U.S. Constitution, I’ll be giving a noontime book talk and signing at the National Archives (more details later).  I hope to see you there.

I am working on a variety of other research projects, including books and papers exploring presidential leadership over individual rights, war-dependent forms of constitutional argumentation (to be published by Constitutional Commentary in the fall), and popular theories of law found in poetry and fiction (my latest, “‘Simple’ Takes On the Supreme Court” is hot off the press).  My papers can be downloaded here.

So long!

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Podcasts on America’s Forgotten Constitutions

For those who might be interested, I recently did two podcast interviews on my new book, America’s Forgotten Constitutions: Defiant Visions of Power and Community (Harvard, 2014).

The Electric Politics interview is more far-ranging and can be found here.

The ConSource interview delves more deeply into the book itself, especially the settlers who broke away from New Hampshire to establish the Republic of Indian Stream, the nineteenth-century socialist constitution written by Icarians (and blessed by the State of Illinois), and John Brown’s armed efforts to refound the Republic.  We also talk a bit about archival work.  Go here.

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Town of Greece v. Galloway and Institutional Withdrawal

Every so often, the Supreme Court seems to be doing something other than clarifying the principles of constitutional law to guide the resolution of future cases.  Instead, it may be doing little more than sketching the terms for institutional withdrawal from a field of social action.

Yesterday’s decision in Town of Greece v. Galloway, which allowed a town supervisor to pick someone to solemnize town meetings even though it is highly likely such statements will turn out to be sectarian, bears all the hallmarks of a hasty retreat.  First, there is the monumental move of describing the chosen prayer-givers as private speakers, subduing Establishment Clause objections by resorting to free speech ideas (I will note that Free Exercise language is sprinkled liberally throughout the opinion, but no one seriously claimed that one must have a right to speak at government functions in order to worship in a meaningful way).  Recall that when public school officials tried the private speech argument in the school prayer (Lee v. Weisman) and football prayer (Santa Fe Indep. Sch. Dist. v. Doe) cases, the Justices rejected it out of hand.  Now, the Court likes the argument in a prayer case. The main difference cited is that those cases involved children and this one involves adults, but fear of coercing children should hardly extinguish the objections of adults, who might very well need to be present for the people’s business.  We are quickly informed that adults in the religious minority must buck up (more on this in a moment).

Second, as some commentators have observed, the ruling gives very little by way of guidance to judges who must determine when the Establishment Clause has been transgressed (and when the Speech Clause has not).  It appears that the Court may be giving up on the idea that sectarian expressions must be guarded against, once you have an honest to goodness public forum. Even if a citizen isn’t forced to attend town meetings, does she have a right to be free from offensive prayer at court proceedings and other government-sponsored events?  Is the Court really going to start drawing fine lines between government settings (apart from schools), identifying ones that present an inherent risk of improper proselytizing?  Doubtful.

Third, if the answers to these questions are: probably not, then the Court may simply be giving the appearance of leaving serious questions open for litigation, but in fact be effectively insulating a certain kind of religious politics, i.e., over prayer, from judicial review.  Once the state creates a public forum, we are told it can’t censor the content of the expression that follows to ensure it is “generic or nonsectarian.”  Doing so would interfere with the invisible hand that governs the marketplace of ideas and often now trumps Establishment Clause concerns.

Since at least the Warren Court, legal liberals have believed that an alert judiciary policing the religious sphere helps keep the peace.  But conservatives learned a very different lesson over the years.  After decades of organizing against the mythical wall of separation between church and state, conservatives–and the jurists that represent their views–have arrived at the conviction that judicial involvement has marginalized people of faith and silenced them, while rendering the courts politically vulnerable.  The resolution in Town of Greece is best understood in this light of backlash politics and institutional withdrawal.

Prayer has been the single most visible issue, both real and symbolic, contributing to conservative counter-mobilization.  So if Engele v. Vitale represented the high point of judicial involvement in religious matters, and if Lee v. Weisman and Santa Fe Indep. Sch. Dist. v. Doe were holding pattern cases, Town of Greece finally absorbs and unleashes those political lessons with a vengeance. It does so by returning prayer issues back to the rough and tumble of ordinary politics. Outside of the school context, it seems that much is permissible by way of “ceremonial prayer” (but why leave it at “ceremonial” prayer?).  Justice Kennedy’s opinion tells us as much.  First, religious minorities who do not hear their religious leaders at government events are told to toughen up, for “[a]dults often encounter speech they find disagreeable.”  Once again, the resort to free speech rhetoric is undeniable: religious objectors are treated like hecklers who should not be given a veto over the religious majority.  An objector’s remedy is one of self-help, just like anyone who is confronted by objectionable speech on the streets: to remain and try to ignore the offending religious speech or leave the gathering.  Justice Kennedy suggests, in a hopeful way, that no one will think any less of you either way.  If you exit, your “absence will not stand out as disrespectful or even noteworthy.” Staying won’t be “interpreted as an agreement with the words or ideas expressed.”

Second, citizens are explicitly warned not to run to court and make too much out of single invocations that go too far.  This is more language seeking to insulate prayer from further litigation.  A judicial remedy might be available only if a litigant demonstrates “a pattern and practice” of ceremonial prayer being used to “coerce or intimidate others.” It might be a problem if government officials directed audience members to pray, or “singled out dissenters for opprobrium,” or allocated “benefits and burdens” on the basis of participation in prayer. In “the general course,” however, mere exposure to unwanted or insulting religious ideas would not make out an Establishment Clause violation.

Will blurring the rules in an attempt to get the courts out of prayer disputes work to reduce religious strife?  I’m not as confident as Justice Kennedy that reduced judicial attention to government-organized prayer will diminish antagonistic politics. At best, it may displace conflict from the courts to local communities and disperse conflict regionally.  In fact, it may very well intensify the activity of legal liberals.  For one thing, we will now see redoubled efforts by religious minorities and nonbelievers to test whether these “public forums” springing up truly are open to all faiths (or those with no faith at all), or are actually shams.  In other words, will the Muslim, the atheist, the devil worshipper, the Odinist, and the Wiccan really be permitted to solemnize town meetings?  If they are not, will their exclusion be done on a content-neutral basis?  The people of Greece really did bend over backwards, apparently never once turning someone down who wanted to solemnize a town meeting.  What happens when citizens decide that only a Christian solemnization is appropriate for the occasion?  Under limited public forum rules, the government is accorded some leeway to determine the purpose of the forum; on the other hand, viewpoint discrimination presumably can still be a problem.

Second, we will surely experience a resurgence of prayers at legal proceedings and other government-sponsored events.  Those situations, too, will continue to be tested in the courts. The re-writing of doctrinal rules (what happened to the endorsement test?) incentivizes further government-religion partnerships through creative use of the public forum doctrine.  A public forum need no longer be a physical space in the traditional sense, but could be a metaphorical pot of money or now, a moment in the agenda when one might speak or pray.  Each time this strategy is judicially approved, it removes the state from constitutional responsibility over the religious activity that subsequently occurs.  At some point, this strategy of recharacterizing Establishment Clause issues as simple Speech issues must reach a logical limit.  Just not yet.

Will clashes over prayer become more intense or less so?  Will there be fewer religion cases in the courts?  Time will tell.  But one thing is apparent: the Supreme Court no longer wishes to be blamed for taking God out of the public square.

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Tribune of the People

bostonglobe-504oped_tsaiCLRYesterday, the Boston Globe published my piece proposing the creation of a new national office dedicated to the protection of civil and human rights. I wanted to give a little more context to the idea here, beyond what the op-ed format allowed.

The basic idea is that we need a single national figure to instantiate rights and defend them consistently. For a variety of reasons, our existing political-legal structure fails to do this robustly and consistently. Enforcement of civil and human rights is fractured among multiple bodies with narrow mandates (U.S. Department of Justice, U.S. Commission on Civil Rights), all of which are captured by party politics. Those in the trenches know how much a general commitment to rights, along with which rights to promote, can vary wildly depending on which party controls the White House. Amicus briefs offer only an ad hoc solution, because such writings are driven by interest group concerns, which can be quite distorting, and don’t carry the kind of institutional weight that government briefs do (if they are read at all by judges, as opposed to their clerks). All of these factors reinforce the idiosyncratic way in which relevant law, including international and comparative law, is presented to jurists.

Historically, presidential agendas have at times aligned with the goal of promoting civil or human rights. But case study after case study underscores how challenging this can be. The bureaucratic politics, party dynamics, and reputational hurdles can be daunting to navigate for anyone who might want a president to take vigorous action on behalf of individual rights.

The idea I have proposed is adapted from one presented by a group of experts based at the University of Chicago in the immediate post-World War II period. At the time, the group–led by the visionary Robert Maynard Hutchins (Chancellor of the University of Chicago and former Dean of Yale Law School) and the fiery Giuseppe A. Borgese (professor of Italian literature)–hoped to inspire the creation of a world constitution. Many later found the overall project too utopian. But whatever one thinks of such strong internationalist proposals, the project allowed Americans to reflect deeply on what ailed American constitutional self-governnance.

Perhaps the most penetrating critique that emerged from the working group’s many meetings involved separation of powers. They believed Americans had become slavish followers of Montesquieu, by insisting that institutional functions had to be strictly distinguished in the name of ensuring political liberty. But strict separation was a disaster: American politics had been consumed by paralyzing party politics and bureaucratic dysfunction, utterly incapable of dealing with urgent problems. Members of the Chicago group turned separation of powers orthodoxy on its head by offering reforms that retained some measure of institutional distinctiveness, but also dramatically increased the overlap of functions.  For example, they thought it wise to give a president explicit constitutional authority to initiate legislation and to serve as Chief Justice of the Supreme Court.

These mid-century reformers felt comfortable injecting greater energy into government in part because they had a strong belief in rights. The Tribune of the People idea encapsulates that commitment, as it was intended to be an office charged with defending “the natural and civil rights of individuals and groups against violation or neglect” by government. The Chicago group tried to design an office that would “neither be a duplicate or retainer of the President in office, a Vice-President in disguise, nor his systematic heckler and rival.”  A Tribune should be “truly the spokesman for real minorities, not the exponent of a second party.”

In a sense, other countries heeded this call, while Americans have largely forgotten the conversation. Today, there are a number of analogues worth studying. Countries that have a national figure dedicated to the enforcement of rights include Albania, Argentina, Armenia, Azerbaijian, Bulgaria, Columbia, Costa Rica, Estonia, France, Guatemala, Norway, Peru, Poland, Portugal, and Serbia. Each of those countries has a Defender of Rights, Commissioner for Human Rights, or Chancellor of Justice. There exists a U.N. High Commissioner for Human Rights, who recently weighed in on Oklahoma’s bungled execution by lethal injection, but has no real power to influence rights development here.

So it seems it is well past the time to consider whether we are doing all that we can institutionally to protect civil and human rights.

 

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Self-Defense and the Fourteenth Amendment

negroes_with_guns-01

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.

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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?

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Cliven Bundy and Popular Sovereignty

If you’ve been following the ranchers’ fight against the federal government and seen the latest news that armed ranchers have come to the aid of Cliven Bundy to keep the Bureau of Land Management from seizing his cattle grazing on federal lands, you will have noticed some commentators who praise their stand as a kind of “civil disobedience” (the National Review has even compared Bundy to Gandhi!). Others–including Senate Majority Leader Harry Reid–say Bundy is engaged in simple lawlessness, as he’s not paid ranching fees for decades and is flouting multiple federal court orders. Either answer, of course, is too simplistic.

In fact, the Bundy standoff is best understood as an organized effort to assert popular sovereignty.  But what kind of theory of power and community does the saga represent? In my quick and dirty take (subject to further refinement), rancher sovereignty appears to be a combination of the legacy of pioneer constitutionalism, a tactical resort to states’ rights, and a healthy dose of contemporary radical localism.

The aspect of rancher sovereignty that has received the most media attention is states’ rights. In some of Bundy’s statements, he has said that the land belongs to Nevada, but notice that it’s always done to undermine the federal government’s claim to the land.  He probably does believe that, relatively speaking, the state has more of a claim to the land than the feds. However, the rest of his statements and actions suggest he is only tactically relying on states’ rights.

In fact, rights foundationalism is most important to rancher sovereignty. Bundy contends that his family has made productive use of the land since the 1880s, and the fact that his labor has mixed with the land gives rise to a fundamental liberty/property right to continue using that land as he sees fit. That individual right, he asserts, trumps countervailing federal law and the Nevada State Constitution (to the extent it recognizes the supremacy of federal law). This sounds bizarre to anyone who has taken Constitutional Law I, but I assure you that this conception of rights is fairly widely shared. It derives from a natural law view of rights, one that has been deeply inflected by the American frontier experience. The belief system once made sense in the world inhabited by ranchers living on open lands, when legal rules were openly flouted and productive use of land could ripen to legal title.

Moreover, there is a strong dose of radical localism.  Apparently, having lost repeatedly in the federal courts, he has turned to filing documents with not only state officials, but also the Clark County Sheriff, county commissioners, and even the district attorney.  These documents give emergency notice of a “range war against the police state” and demand the protection of state and local laws against the power of the national government.  Bundy states:

First I’m fighting this thing on paper. Then I’ll go after the contract cowboys. And then if I assume they’re (BLM) ready to go (confiscate the cattle) then I’ll go after them with the media, with ‘we the people’ and whatever else it takes….What I am organizing are lots of groups. They’ll come from hundreds of miles away. They’ll be multiple users; the hunters, campers, off-roaders, miners, sightseers, Tea Party people.

But it’s clear to Bundy that the sheriff is the most important actor in this constitutional theory. “The sheriff is the only one with the policing power and arresting power in Clark County,” he states. “The Clark County sheriff has more constitutional policing power in Clark County than the president of the United States and his army.”

Again, this statement will look absolutely ridiculous to anyone who practices law in the courts, as it inverts the entire structure of government created by the 1787 Constitution.  But that’s the point of the ideas of radical localism that persist among some members of the Tea Party, Patriot movement, and those who call themselves “sovereign citizens.”  Elevating the sheriff is the best way to subvert the hierarchical features of mainstream constitutionalism.  According to this theory of government, the county sheriff (not the U.S. Attorney General) is the highest law enforcement officer.  Some practitioners try to tie this view to older historical accounts of the township and shire; others are content that the sheriff evokes older American rule of law traditions.  Bundy himself in one interview has said he and his supporters refuse to accept the authority or jurisdiction of the BLM–and may even go so far as to deny the legitimacy of the federal government as a whole.

I said earlier that Bundy’s reliance on states’ rights was largely tactical, but there are tactical benefits to radical localism as well.  The approach aligns seamlessly with practical efforts to subvert the conventional constitutional order by taking over key local offices through elections and, failing that, appointing oneself as sheriff and deputizing true believers.

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Making Changes to Fundamental Law

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.

 

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Theory as Recipe

I appreciate Jim’s and Linda’s clarifications of their project.  If intellectual thought is always a mixture of ideas that have come before, we might think of constitutional theory as a recipe.  What Jim and Linda have cooked tastes pretty good, and I want to know how much of what got tossed into the pot.  I’m curious how much and what kinds of liberalism, republicanism, and feminism are a part of their theory: how these ideas interact, which parts seem stronger in which contexts, and why.  Their response suggests that their recipe is equal doses of all three, but I’m not so sure.   I might not be the only one.

Mark Graber, in his post, read the book to mean something like: 4 parts liberalism (understood as congruence with contemporary liberal policy preferences), 4 parts feminism (either congruence with political party or intellectual community), 1 part republicanism (understood as facilitating dialogue and permitting maximum policy and moral preferences to sway outcomes).

I read their “mild form of perfectionism” (p. 118) as something closer to: 2 cups of liberalism (understood as liberal defense of rights as foundational to citizenship), 4 cups of civic republicanism (structuring debates over rights), 2 heaping tablespoons of feminism (where relevant to citizenship perfecting activities).  I treat the book as an effort to bridge not only intellectual divides but also partisan ones, i.e., not simply liberal preferences masking as legal theory.

The authors object to any description that their theory is procedural, and that’s fine.  I merely offered that term as one way of understanding how civic republicanism might be working in their theory.  And I meant it in the same way that John Hart Ely’s theory has sometimes been described as procedural, though of course it, too, yielded substantive constitutional norms and sought to shape outcomes.  But for Ely (and I thought perhaps for Jim and Linda as well, though I may be mistaken), even substantive rights have to be ultimately brought back to foundational organizing principles (deliberation, virtue, responsibility).

Perhaps this shows my own inclinations, but I gravitated toward the “shared sovereignty” discussions as most interesting because the approach accords with my own sense that (1) rights must be articulated, but (2) judicial definition of rights can and should be done in ways that, to the extent possible, preserves the ability for communal dialogue (understood broadly) to continue.  It also strikes me as fertile ground for further frameworks, adjudicatory principles, and justifications to be developed that might maximize those civic virtues that can foster responsible exercise of rights and robust debate over the meaning of the good life.  Jim’s and Linda’s pullback from these parts of the book–that they are not celebrating such solutions and are not trying to maximize any particular civic virtues–leaves me puzzled and mildly disappointed (though possibly through no fault of their own).

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The Language of Civic Republicanism

It’s an honor to participate in this online discussion of Jim’s and Linda’s book, Ordered Liberty, which offers a theory of liberal constitutionalism that seeks to mediate tensions between rights, responsibilities, and virtue.  Their work is always engaging, learned, and timely.  I’m pleased to have the opportunity to share some thoughts about it.

There are many provocative concepts worth pushing on, but I thought I might begin by observing that it is possible to read their thoughtful book as requiring the use of civic republicanism as the primary language through which to fight over constitutional rights.  If this is correct, I would begin by asking the question: what work does the language of civic republicanism do in their theory?

Jim and Linda posit that fostering responsibility for oneself and responsibility to others (family and community) characterizes the general project that may be undertaken by the state.  At times, this “formative project” is called “securing the capacities for democratic and personal self-governance.”  So, again, how much lifting does the ideology and rhetoric of republicanism accomplish?

One possibility is that civic republicanism organizes constitutional debate.  It operates as a set of rules of exclusion, putting certain kinds of arguments off limits while including other kinds of arguments if they are properly constructed.  Departing from communitarians and natural law theorists, Jim and Linda believe that moral arguments are permissible in constitutional debate so long as they have been translated into the language of civic republicanism: a speaker doesn’t refer to comprehensive moral doctrines, but instead resorts to some set of liberal values, or virtues.

If civic republicanism merely organizes a conversation, then it may be doing little more than establishing a range of possible outcomes, all of which might be compatible with the goal of inculcating some agreed-upon set of virtues and responsibilities.  The authors’ discussion of home schooling suggests that, after taking the extremes off the table (a right to home school without qualification/ no right to home school), there are any number of possible policy arrangements that might inculcate responsibility and virtue.  Similarly, in discussing BSA v. Dale, Jim and Linda don’t quite come out and say the case was wrongly decided or rightly decided, but are content to suggest ways in which the opinion might have taken autonomy and responsibility better into account.  This hesitation could be treated as evidence that, once extreme solutions are taken off the table and the language of virtue and responsibility is used in some minimally proficient way, their theory is indifferent to which outcome is selected so long as the choice is defended in the right vocabulary.  This vision can, in a slightly different light, resemble a procedural approach to constitutional law.

But it may seem unsatisfying for a constitutional theory not to help us choose among attractive possibilities.  Can we imagine a civic republicanism that does more work, one that more strongly shapes particular outcomes?  In other words, can the framework of virtues and responsibilities aid us in sifting through possibilities and identifying better solutions from among plausible ones?  Perhaps, but in a pluralistic community we would need to know something more about particular responsibilities (to whom), which virtues should be maximized (since in reality many different virtues may be at stake and in tension), and whose virtues should be prioritized (more on this later) before we could assess which outcome would best facilitate a virtue-based agenda.

Perhaps what Jim and Linda offer is something short of a comprehensive theory (the authors seem skeptical of grand theories and perfectionist approaches) but more than a rule-bound approach.  It is a demand that constitutional discourse occur under certain grammar rules, coupled with a handful of meta-principles.  At times, Jim and Linda seem to be arguing that civic republicanism (at least the version favored by the authors that takes both rights and responsibilities seriously) yields substantive meta-norms.  For instance, their critique of Sunstein’s theory of minimalism suggests they favor a strong adjudicative norm of judicial engagement.  They don’t seem to think that judges should avoid controversial cases simply out of a fear of backlash; to the contrary, they believe (as I do) that judges must undertake to articulate rights as part of a duty to ensuring deliberative politics.

The authors praise solutions that neither spell out absolute rights nor deny individual autonomy.  They especially like solutions of “shared sovereignty” grounded in the idea that multiple communities have a claim on individuals (see, for example, their discussion of cases involving the rights of schoolchildren or abortion), and solutions that foster dialogue among different branches of government (see their analysis of the gay marriage rulings).  All of these strategies of decisionmaking may encourage deliberation, though in ways that individuals might occasionally fear, precisely because they challenge one’s worldview.  What I am less certain of is what civic virtues are being maximized through shared sovereignty solutions.  Is it an ideal mindset associated with citizenship?—for instance, Jim and Linda sometimes speak of “reflective” judgment.  Perhaps the best legal decisions foster certain habits of citizenship, e.g., considering a viewpoint different from one’s own, consulting all communities with a stake in the outcome?  Or are shared sovereignty solutions preferred on the view that multiple decisionmakers might increase the chances of better, more informed decisions, or at least culturally supported ones?

So, the upshot is this: how thick or thin, and how substantive or procedural in nature is the language of rights, virtues, and responsibility?