The insurrectionists who attacked the Capitol on January 6, 2021, went to Washington, D.C. to assert a set of legal claims. Their claims were primarily about who won the election,
but they also asserted subsidiary arguments about whose opinion on that question mattered
and how disagreements ought to be settled.
On each of these points, the rioters were certain they were right. You might think that because the rioters were misinformed
and their message unsophisticated, their constitutional ideas don’t matter. But I worry that they matter a great deal. And I do not think we can yet tell how much their beliefs will change our legal order.
In saying that the rioters’ beliefs about the constitution matter, I’m not saying anything popular constitutionalism scholars haven’t been saying these last twenty years or so. But I am saying it in a less happy, optimistic tone. And I will add that the many scholars who have elaborated upon Larry Kramer’s central idea in The People Themselves have gotten popular constitutionalism, as it has actually existed in American life, quite wrong, primarily because they have failed to take violence seriously.
Riot is not only, as Dr. Martin Luther King Jr. famously put it, “the language of the unheard.”
It has long been, and continues to be, the language of the heard as well.
The early literature of “popular constitutionalism” aimed to ennoble and validate popular efforts to stir up the stasis and order of the American constitution—usually in progressive directions.
But in rediscovering that the American constitutional order is not static, this literature has ignored one of the dominant mechanisms of change. The appeal to arms as a way of validating legal arguments is worked deeply into our intellectual history and culture. It was entailed upon us by our Founding generation, who sincerely believed that people “are only as free as they deserve to be” and, relatedly, that one can tell how much freedom people deserve by how much blood they were willing to shed to obtain it.
The optimism of early popular constitutionalism scholarship built on the work of so-called “neo-Whig” historians, the school dominated by Professors Bernard Bailyn, Edmund Morgan, and Gordon S. Wood, among others.
This is hardly surprising, as these were still the leading working historians when Professors Bruce Ackerman, Akhil Amar, Larry Kramer, and the rest were first developing their theories. And as neo-Whig history, especially Wood’s Creation of the American Republic, remains the go-to citation for Supreme Court opinions, it is, in a sense, our official state narrative.
One expects to find it reflected in legal scholarship.
But the view of the neo-Whig school is not neutral.
A theme of neo-Whig history is that the American Revolution unleashed, in Bailyn’s words, a “contagion of liberty,” subjecting slavery and the other injustices of its day to “severe pressure” and advancing a “spirit of . . . idealism” at a “rapid, irreversible, and irresistible” pace.
Morgan taught the “American Revolution” as Americans’ “noble,” “daring,” and “successful” “search” for “nothing more or less than the principle of human equality”—“a discovery that would turn the course of history in a new direction . . . and liberate us from our past as it was soon to liberate them.”
Wood, Bailyn’s student, emphasized the thought of the Federalists because, he explained, “the Federalists’ intellectual achievement really transcended their particular political and social intentions” and “embodied what Americans had been groping towards from the beginning of their history.”
Wood argued that Federalist ideas would endure and underpin a distinctly “American System of Government,”
even as those ideas were “adopted and expanded by others.”
One aspect of the Founders’ genius, Wood insisted, was that they “institutionalized and legitimized revolution,” such that “new knowledge” could be incorporated into governance “without resorting to violence.”
This view of history must be understood as an artifact of a particular moment. In the 1950s and 1960s, Americans expressed a higher degree of trust in their government than at any other point since.
Victory in World War II gave the nation a coherent, if not messianic, idea of American culture and destiny. An all-consuming battle against Soviet ideology then encouraged intellectual efforts to prove the integrity of the American political project.
A muscular administrative state had yet to fall under the relentless attack of the 1980s, and it seemed that the Federalists’ vision—Alexander Hamilton’s vision—for American empire was ascendant.
The successes of the Civil Rights movement, first in Brown v. Board and then the Civil Rights Act, emboldened historians to downplay the horror of slavery as a doomed theme.
It is in that context that the cheerful, triumphant neo-Whig version of American history emerged.
These historians tried to gather a compelling narrative from the mass of information in the past and make it advance sensibly toward their present. This is not a criticism of their work; that is the historian’s craft.
We’re writing in a different context now. Armed groups have surround-ed state legislatures to intimidate them into passing or rescinding legislation.
This behavior has gone unpunished.
Anti-government extremists laid a months-long plot to kidnap a state governor.
Elected officials regularly receive death threats, and their homes and the homes of public health officials are picketed by armed men.
A growing percentage of Americans now believe that force is justified to make political change.
In this context, it no longer makes sense to celebrate America as exceptional because we have discovered how to engage in politics “without resorting to violence.”
Instead, it makes more sense to ask: What is the path that led us here?
There are more than enough signs, for those looking to find them, that violence has been an integral part of the American system of government from the Founding era. That is because we are the inheritors of not one constitutional tradition from that era but two. One is a constitution-alism of institutions created by text along with a practice of turning to those institutions to resolve political differences.
We have been taught to understand that this is the end-all-be-all. But that’s not right.
We are also the inheritors of the Founders’ unwritten constitutional tradition. And under the unwritten constitution of their upbringing, the Founders made claims through action, won rights through usage, and maintained rights through uninterrupted custom.
This Article demonstrates that under a constitution thus defined through praxis, violence formed a part of the legal lexicon. It was not just that people at times resorted to violence to get their way; British North Americans belonged to communities that recognized violence as a means of making legal arguments and preserving legal norms.
The Federalists tried to replace this constitution of community consensus, of praxis, of action, and of force, with a written constitution. Their accomplishment, the neo-Whig historians taught us (skipping over the Civil War, which was not their period of expertise), was that we would thereafter fight out our controversies at the ballot box or in court.
A writ-ten constitution was supposed to confine constitutional claimsmaking to text and institutions.
Neo-Whig historians and their students have described the Founding moment as the triumphant establishment by the era’s elite of this ordered system, one so bloodless and rational that we can still discern its outlines and parse its Framers’ intentions by looking at the text they set down.
But this Article argues that the Federalists were not able to suppress or to fully transform Americans’ constitutionalism of force.
The constitutionalism of force endures. Even as our institutional traditions have grown more dominant over the centuries, it is nonetheless impossible to fully account for the ordering of our society or for the interpretation of the textual Constitution without also understanding that violence has at times fueled the Constitution’s evolution and defined the limits of constitutional amendment by more formal means. The Ku Klux Klan’s campaign of terror defined the scope of the Reconstruction Amendments more than its framers’ intentions did,
a scope formalized after the fact in Plessy v. Ferguson.
If America has a constitutional order that has endured since the Founding moment, that order is a blend of text and violence. The Founders’ legitimation of violence is not a point of historical interest that has since been “fixed” and safely resolved. Resort to violence to resolve constitutional questions has instead been a recurring theme, one that is not as acute in every era but that resurfaces frequently. When it does, it poses a serious threat to the rule of law system and the institutional traditions we have nurtured and strengthened over the course of our history.
We have inherited the Federalists’ failures, and these days we may feel them even more keenly than the Federalists’ many successes. Violent movements have power to change our constitutional order. As a result, we are now in a time as precarious and as open to influence as any of the other key moments in our country’s formation.