America’s Forgotten Constitutions
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America’s Forgotten Constitutions

October 20, 2019

>>Doug Swanson: Good afternoon, everyone.
I’d like to welcome you to the McGowan Theater located in the National Archives buildings
in Washington, D.C. I’m Doug Swanson, Visitors Services Manager and Producer for the noon
time lecture series. Before we get to today’s program, I’d like
to remind you of other programs we have coming your way. I hope you’ll join us Tuesday, September
23, for a special film program at 7:00 p.m. We’ll present a special screening of Charles
Guggenheim’s academy award-nominated documentary “DDay Remembered.” Craig Symonds will introduce
the screening and will be signing copies of his book afterward.
On Thursday, September 25, 7:00 p.m., we’ll be screening the film “Breath of Freedom,”
which tells the story of the one million plus AfricanAmericans who fought in World War II.
The screening is presented in partnership with the Smithsonian Channel and the Congressional
Black Caucus. To find out more about our public programs
and exhibits, please take one of our monthly calendars or visit our website at
Yesterday was the birthday of the U.S. Constitution. In keeping with that theme, today is “America’s
Forgotten Constitutions: Defiant Visions of Power and Community,” by Robert Tsai.
Robert is Professor of Law at American University, Washington College of Law. He is a prizewinning
essayist on criminal law and history. He earned a B.A. in Political Science and History from
the University of California Los Angeles where he received the prize for his historical writings
and a J.D. from Yale Law School before entering the academy. He clerked for federal judges
in New York and Boston and practiced law in the public interest.
He is the author two of books: “Eloquence and Reason: Creating a First Amendment Culture,”
which deals with valuing speech, resistance and religion as well as America’s Forgotten
Constitutions. His primary research interests include democratic theory, the formation of
American political criminal procedure, presidential strategies on rights and radical constitutionalism.
His work appeared in the “Yale Law Journal,” “Michigan Law Review,” “Georgetown Law Journal,”
“Boston University Law Review,” and he’s also been interviewed by “The New York Times,”
the “Boston Globe” and CNN. Please join me in welcoming Robert Tsai to
the National Archives. [Applause]
>>Robert Tsai: Good afternoon. It’s a real pleasure to be with you today as a naturalized
U.S. citizen, it’s a dream come true and a real treat to have written something about
the American political tradition worthy of discussion in this venue. During a week set
aside for all Americans to ponder the history and significance of our Constitution.
Now, we all know the standard civic accounts of the U.S. Constitution, one we learned in
school. The Constitution was written by great men, possessing wisdom and foresight. And
their towering achievement in 1787 has since stood the test of time, more or less philosophically
intact. Now, any trained historian will tell you that
this is not the whole truth. This country has faced so many national and international
crises that it might be more accurate to say that we have lived under more than one constitution.
And every constitutional theorist must grapple with the ideological mishmash that today makes
up the constitutional law practiced by lawyers and judges.
In fact, the ratification of America’s Constitution in 1787 and succeeding years did not settle
ideological conflict, I argue in this book, but at best redirected and delayed it and
in other ways intensified that conflict. After the founding, the secular incrementalists
and pluralistic legal associated with our Constitution had to be defended against its
competitors, against opposing visions of law. Rather than being satisfied with their creation,
Americans were inspired in every generation to create ever more an increasingly diverse
constitutions to solve their problems. Now, to illustrate constitutional law as a
clash of world views, my book ventures beyond the courtrooms and the ivy-colored walls of
the legal academy and into the belief systems and writings of ordinary people, the alternative
constitutions that average people wrote, the declarations of independences of which there
are many, laws that people wrote on their own, novels and even poems, all of this, I
argue, forms an important part of our popular legal tradition. So this book is about the
Constitution as a lived practice, an idea that we take to be binding in an important
sense but also something that can be reinvented by regular people, sometimes drastically so.
Consider a few of the protagonists in my counterfactual account of the American Constitution, each
of whom wrote their own constitutions in order to remake their worlds after the founding
generation. In 1850, French immigrants in the Midwest
wrote a constitution creating a social society in Illinois. This was an experiment that was
explicitly blessed by state authorities. In 1858, radical abolitionist John Brown held
a convention of freed men and women in Chatham and produced a constitution that imagined
an America that had finally gotten rid of the vice of slavery. In 1905, the socalled
five civilized tribes forcibly relocated to Indian territory got together and proposed
a state called Sequoia and wrote a constitution for it. And just a few years ago white separatists
drafted their own constitution to govern a white republic, to be carved out of the states
of Washington, Oregon, and Idaho if they ever get their way.
Now, the constitutions that all of these Americans have written, vary widely in terms of their
substantive features, but what unifies them and their experiences are a few ideas: first,
the proposition that the people are sovereign and a source of all legitimate laws; and,
second, every so often a people’s fundamental laws must be rewritten from scratch. Each
of the group of Americans that I write about was motivated to repudiate, resist, and sometimes
supplant entirely the leading philosophies or models contained in the 1787 Constitution
or that came to be associated with that text. What I’d like to do with my time with you
today is to delve a little bit deeper in two groups: alternative constitution writing experiments,
to give you a taste of the clash of world views that I’m talking about; and what lengths
the two documents that I will discuss is the black experience in America: slavery and economic
and social institution temporarily sheltered by the 1787 original Constitution as well
as racial segregation discrimination, a host of practices, of policies, and beliefs which
persisted after slavery itself was formally abolished.
Now, again, it helps to remember the conventional account. A Civil War erupted over the issue
of slavery and the Reconstruction Amendments fixed the problem. When reconstruction ended
and segregation emerged, the civil rights movement finally led to the passage of landmark
civil rights laws. The two alternative constitutions that I discuss in my book disrupt this tidy
narrative. Not only do they complicate the causal story, revealing a clash of constitutional
visions and tactics employed by regular people, they also uncover the popular legal theories
and paths not taken. The first document I want to talk about is
John Brown’s provisional constitution; and the second is a document called “The Constitution
for the Republic of New Afrika.” John Brown, who is familiar to most of us,
was a radical abolitionist. He went further than many of his contemporaries in two ways:
his legal world view and in terms of the tactics that he was willing to employ to implement
that world view. Now, tactically John Brown was willing to
use violence to spur legal change. To Brown it was a natural progression to go hiding
slaves on the Underground Railroad, to helping free staters in Kansas to fight off proslavery
squatters, to stealing slaves themselves to give them their freedom, to finally his most
infamous act of all, attacking a federal Army in Harpers Ferry. Self-defense was the legal
principle Brown most often cited for his use of force on the ground that slavery was little
more than institutionalized assault, battery, and kidnapping and that resisting such measures
until the exercise of a natural right. Moreover, Brown saw the 1787 Constitution, that original
document, and the action of authorities as legitimate only in so far as they complied
with Christian ethics. Thus, the targeted use of force against slaveholders and their
friends simply entailed the people enforcing higher law.
Now, this tactical orientation obviously well beyond what the 1787 Constitution laid out
for amendments to be made and what mainstream Americans prefer in terms of orderly change.
It also frightened many abolitionists including Frederick Douglas who Brown hoped would join
him in the Harpers Ferry raid. But Brown’s revolutionary position had antecedents, historical,
theoretical which while disruptive enjoyed support among some Americans then and now.
In fact, slaveholders who were drawn from more elite sectors than John Brown would later
invoke these same principles: popular sovereignty and written constitutionalism, along with
the right to selfdefense when they seceded from the union and employed military force
to defend the Constitution of their own. What about the substantive of John Brown constitution?
That provisional constitution fused this aspect of America’s religious heritage to its secular
revolutionary position. And both of these schools of thought contain, in our political
tradition, became increasingly out of step with mainstream ideas about what a constitution
is, what it’s for, and how it might be altered. John Brown’s constitution went further than
what eventually became the Reconstruction Amendments. And mainstream constitutional
laws increasingly limited understanding of equality. That document contained a robust,
ethical view of a society purged completely of slavery and forms of domination for John
Brown’s constitution equality meant not only an individual’s right against government but
also entailed duties owed to citizens, every citizen, black or white, rich or poor had
had a duty to work or face punishment. The country’s leaders had to exhibit a high
moral character; national priorities, another departure from our own Constitution. And every
citizen was enjoined to life of moderation, avoiding doing unnecessary harm to others
and avoiding wasteful behaviors. You might find this interesting. This also
might be a popular idea today. Brown believed in a limited government to such an extreme
that he believed that Congress [Inaudible]. I’m quite confident there would be supporters
of that position today. Now, Brown’s constitutional vision could never
be fully implemented, at least beyond his small band of men and his immediate family
for his reckless assault in Harpers Ferry and subsequent trial and execution thoroughly
discredited his legal enterprise. But it is a vision well worth considering; one where
a deeper mutual sense of attachment, of obligation and of virtue would constitute the ties that
bind a people instead of an inclusive but fragmented, highly individualistic notion
of constitutional law that reigns today. Now, fast forward to the mid-20th Century.
Slavery had been abolished 100 years before, but American society was still marked by racial
domination and unequal opportunity. By 1968, the consensus that had spurred the passage
of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 had broken down. Urban
riots broke out and liberals once again abandoned any more lasting plans for racial justice,
declaring victory and calling it a day. So the founders of the republic of New Afrika,
the original of slaves and their descendants had never truly been heard. Brown v. Board
of Education did not come close to remedying generations of depravation and degradation.
The answer for these black nationalists was not to be satisfied with employment and housing
laws and voting rights but instead to demand the right to selfrule in a more direct and
effective sense; something that could only be carried out in a Republican constitution
of their own. Two brothers hailing from Philadelphia, Milton
and Richard Henry, carried on this project, believing that a black public would be the
true and perfect end goal of Malcolm X’s teachings. Milton, the older brother, had been a Tuskegee
airmen, eventually getting himself kicked out of the Army. Richard, the younger brother,
was a journalist. And together they started out by organizing boycotts and protests to
end racial segregation within the system. But as they encountered the limits of mainstream
liberalism in the 1960s and met the charismatic Malcolm X and heard about oppressed people
around the world throwing off their chains, their legal views veered towards more radical
and popular sovereignty. Malcolm X’s assassination spurred his followers
to legal action. And the march of 1968, the Henry brothers, who now renamed themselves
Gaidi and Imari Obadele after shedding what they called their slave names, convened a
people’s convention in Detroit, there attendees drafting a document that would be later ratified
by gatherings of black Americans in cities across the United States. Whereas John Brown
had written an earlier constitution on behalf of the enslaved people of America, the descendants
of slaves inserted their own right to selfgovernance directly.
As reparations for slavery, New Afrikans wanted the Deep South to be handed over so they could
establish a new republic. This country would be ruled by a constitution they called the
Code of Umoja and authentically African institutions. It would be governed by the African people
of North America but of a community who would hold its homeland to dispossessed Africans
around the world, not unlike Israel. In one sense, the New Afrikan constitution
resembled John Brown’s in its emphasis on moral revival. New Afrikans believed that
one of the main points of constitutional law was to do just this: they felt that life in
urban America had degraded black culture and that under a new constitution and creed, selfrespect,
spirituality, and modesty would return to political life. A new constitution would make
a new man and a new woman and foster a new civic culture.
In another sense, the New Afrikan constitution departed from John Brown’s by emphasizing
the cultural distinctiveness of black people. New Afrikans did not reject someone from membership
simply because they were not black but their theory of politics depended on black ideas
primarily shared by black citizens. A shared history of oppression gave rise to not only
the right to rule but also the possibility of more humane institutions and practices.
Now, John Brown did not believe that the contours of the original American Constitution were
wronghanded. But, instead, he believed that judges and elected officials had perverted
its provisions. Here the New Afrikans took a different view. New Afrikans believed, by
contrast, that the Constitution created by the framers emanated from a theory of landed
white rule; that that constitution had never gained the consent of black citizens, not
even during reconstruction and, therefore, it had to be scratched and scrapped.
Many features of the Code of Umoja that they came up with reputed mainstream constitutional
law and standard aspects of criminal procedure that we understand. New Afrikans abolished
the death penalty and the office of the prosecutor. Instead of engaging in mass incarceration,
a council on elders would promote reconciliation of offender and victim. Judges were explicitly
authorized to borrow legal decisions and ideas from foreign law and international law. And
socialist economic policies would replace the dominant vision of law in the United States
that privileged liberty of contract and capitalism. Impatience eventually overtook the New Afrikans’
plans for selfgovernment just as it had John Brown’s underground republic. Both groups
were highly ambitious. Brown believed his constitution would someday, somehow come to
supplant the original Constitution. The Obadele brothers believed that the federal government
persuaded somehow, some way to give up hard won territory. Like brown, Imari became captivated
by ideas of armed selfdefense and how violence can cause revolutionary change. In 1971, shootouts
with police led to arrests, trial, and imprisonment for key R & A leaders.
Popular ideas of sovereignty had changed over the years. For one thing, the body of law
that average people can cite seemed stronger, more plentiful. A successful wave of decolonization
in Africa and other parts of the world, as I mentioned before, could now be cited as
precedent for popular sovereignty. Advances in international law which increasingly asserted
the right of selfdetermination and human rights also leavened more traditional appeals to
selfgovernance. And as I already mentioned, there was both
a national and international dimension now to new models of political immunity.
As the tradition has become more capacious, more Americans showed themselves willing to
experiment with new institutions and foreign concepts and laws even as they saw themselves
laboring within the same American political tradition. Ideas of popular sovereignty, though
they can be wild and creative, among the discontented actually became increasingly domesticated
in mainstream thought in law practice by lawyers and judges, and respected in the courts and
legislatures. The idea that the Constitution should remain
untouched or rarely amended for better and for worse has become conventional wisdom.
And yet vestiges of a revolutionary tradition remain.
We are asked to celebrate the Constitution this week and we should remember the amazing
plan that the founders gave us. But more important, and instead of celebrating the Constitution,
I submit, it is better to celebrate the legal and political tradition that they gave to
us, that both sustains that document and pushes it to become an ever better version of itself.
What I have learned about the Constitutional tradition by studying the Constitution’s written
by Americans after the founding is eyeopening. They are empowering, thought provoking, but
also confusing and sometimes incredibly disturbing. I urge you to read them yourselves. And always,
a revolutionary tradition remains in the background, a reminder of other methods and possibilities
should the 1787 Constitution ever falter. Thank you.
[Applause] I’m told we should take some questions for
anyone who has them. Questioners can go to either side of the auditorium. I think to
be heard in the recording, it’s best to venture to the mic.
>>A wonderful talk. You could only mention so much in the time allotted, but you have
not mentioned the rebellion largely forgotten. But I think it may be as enduring as some
of the examples you pointed out.>>Robert Tsai: Yeah. That’s a great mention
and a great, I think, illustration of the idea that constitutions entail a kind of clash
of world views and sometimes, as in the rebellion, a clash of legal texts. This is a moment when
different groups of Americans in the northeast actually wrote competing constitutions and
waved them around as they vied for supremacy. So, again, I think it’s an early kind of example
of what I’m talking about within the same generations as the founding. A terrific example.
Yes, sir?>>If you fast forward 10 or 20 years, do
you think democracy in Iraq will work or fail?>>Robert Tsai: Wow. I’ve learned in this
business not to make predictions about how long a legal systems can rise or fail. But
I do think that what little I know about that experience is that it illustrates a couple
of points. One, it matters who writes constitutions. They need to be seen as documents that from
the writing itself, in a kind of processbased way, to be a reflection of people’s true interests.
And so to the extent that they don’t fully capture that, that can be a major problem.
The second point, I think that ongoing example illustrates is importance of the development
of a legal culture. And that’s kind of one of the central concerns of this book and my
work in general. It’s not enough to write. That writing becomes a part of a preexisting
political culture. And that document tries to transform it. It tries to push and pull
it and give new grammar in people’s politics to kind of push the country in this their
belief system in a particular direction. And so, it’s really that cultural experiment,
right, that will tell us how well the rule of law will survive in a place like Iraq.
Thank you.>>I direct a national prison reform organization.
I’m always struck I think you said people just automatically say that slavery was abolished.
And slavery was not totally abolished, as we know. There’s an exception clause in the
13th Amendment. I was wondering if you had any thoughts on the exception clause in the
13th Amendment. Certainly it didn’t play a role in John Brown. It was before. But it’s
got an interesting history. I’m reading about the lease program in regard to the Deep South
afterwards, right now the book is basically it was slavery.
So we still have very much slavery in our slavery is accepted right now in our Constitution.
Has there been any attempts to remove that in any new constitutions? It just seems like
people automatically — even in the movie “Lincoln,” they read it out, but they even
included the exception clause. But nobody, no one seems to be aware of it, that there
is an exception clause and that we still have slavery in our Constitution.
>>Robert Tsai: I count myself among those who haven’t thought very deeply about this
point, but I think it’s well taken. If we look at the document closely, we’ll see that,
A, words matter, but also that sometimes there are very technical ways in which we talk about
certain kinds of problems that are overlooked that cause difficulties later.
I myself haven’t thought deeply enough, I think, about this problem. It sounds like
you have. I do know that the general thrust of the 13th Amendment and the 14th Amendment
and the 15th Amendment has been taken as if it had solved a kind of national problem then
and there. And as you suggest, the story’s much more complicated than we were led to
believe. Thank you for pointing that out.
>>Thank you for coming today. Julian from Teaching for Change. Do you think the portrayal
of John Brown as sometimes crazy or revolutionary caused people to be reluctant to stand up
for others because of his portrayal in history, especially across racial lines?
>>Robert Tsai: He’s always shown as having a kind of crazy glint in his eye. Anytime
I’ve spoken to people about John Brown, I often get this sort of reaction: But he was
nuts, right? I mean, really nuts. But my answer here is that you can be both nuts and have
a coherent legal theory and one that’s shared by more than just the person that is the current
proponent of it. I think that’s true of John Brown. John Brown clearly dramatized in a
visceral way a set of ideas. Those ideas were shared with people at the time. He just pulled
them together in a way that was very attractive and interesting. He was willing to execute
them in a way others were not. For example, Sandra Spooner, a contemporary
of Brown’s, wrote about selfdefense and he very much argued in his writings that because
slavery was a form of assault, battery, kidnapping and so forth, that not only did a natural
right to fight slave masters, but that anyone had a right to help the slaves as an extension
of that philosophy. So it wasn’t just John Brown who held those
views, but he was willing to execute them. And also his vision of what the United States
could look like as a system of laws where slavery played no longer any part in it was
shared by others. There were other abolitionist who’s secretly was funding many of these projects
and sometimes not so secretly, but many of them believed resorting to force was an important
component for slaves to become the kind of virtuous individuals capable of selfgovernance.
In other words, that kind of taking up arms, right, was an important first step to becoming
a full citizen like whites were. So I suppose that would be my answer; that
there are others who shared his views. I think that Brown gets himself into trouble because
there just isn’t any gray with him. Right? It’s all black and white. So as with zealots
of this sort, it’s hard to imagine any kind of compromise, any kind of solution. And this
reveals itself, also, in Brown’s kind of lack of a theory for how his constitution would
become our constitution. There’s nothing in the Constitution that admits of any deep thinking
about how we would go from moment A to moment B. Ok? He was just convinced at some point
people would be so tired of the old document that we would move to a new one.
Clearly, after his trial and execution, the Commonwealth of Virginia and the federal government
do a very, very good job of discrediting all of his ideas from his comprehensive vision
for a constitution to I think painting him as a kind of rabble rouser that no one really
should pay attention to anymore.>>Thank you.
>>Robert Tsai: Thank you.>>My name is Charles Spencer.I’m a retired
political scientist. And I find this very interesting. I thank you. I also apologize
if I missed your coverage of this point by coming in late. Would you briefly compare
and contrast the Constitution of 1787 with the Constitution written by the Confederate
States of America in 1861? Specifically, did the Confederate Constitution provide for a
graceful and peaceful exit of any state which disagreed with the central government, which
was one of the foundation stones of their own cessation? Did it, for example, provide
for nullification by the states of any law of the central governments such as taxation
or conscription? The Constitution of 1787 is rather silent on these issues, which was
part of the problem.>>Robert Tsai: Great question. I do have
a chapter on the Confederate Constitution. I think it plays an important part in a kind
of counterfactual history of our Constitution. So I say a lot more about the things you mention
there. But briefly, if we compare the Confederate
Constitution with the U.S. Constitution, I think what you’ll be struck by is how similar
it actually looks. Right? That the overall impression is basically they took the 1787
Constitution as a template and made a few changes here and there.
Now, some of those changes were important, but there weren’t as many changes as you might
expect. Certainly, there was language, there’s language in our Constitution that refers to
legislature for the common welfare and description of legislative powers that is paired back
a little bit. These textual changes are overblown because it quickly becomes apparent that the
Confederate Congress is going to be every bit as powerful as the American Congress originally
was. That is to say, some of the restrictions that are proposed by more radical secessionists
do not make it into the Confederate Constitution. For example, I talk about I talk about the
fire-eater by the name of Robert Barnwell Rhett who hailed from South Carolina quite
a bit. And he’s sort of a leading fire-eater whose ideas and writings really push South
Carolina to be the first state to secede from the union. For a while, Rhett is very happy,
right? After all of these years of coming up with the fear of nullification, right,
how states can and should resist laws that the federal government passes, it somehow
violates states’ rights, secession was happening. Ok? He had been asking for this to happen
for years. Now, Rhett and other fire-eaters wanted the
Confederate Constitution to contain stronger states’ rights provisions, including on the
topic of nullification, the ability of any particular state. If they were upset enough
to simply withdraw from the Confederacy, those proposals were defeated.
So although states’ rights rhetoric is a critical component, theory of secession, it does not
make it in its strongest form in the Confederate Constitution. So in that way history sort
of repeats itself. Right? That strong language about the importance of the natural right
of sovereignty play a role in America’s break from the United Kingdom, but the strongest
form of popular sovereignty, language talking about it really doesn’t appear in that document
either. Fire eaters also wanted in the Confederate
Constitution, stronger provisions protecting slavery. Ok? For example, there is a proposal
that would give states the ability to basically veto the admission of any new states to confederacy
if they were not clearly a proslavery state. That went down in defeat. And there were other
sort of provisions like this. So if you take a look if you lay them side by side, you’ll
actually, I think, be struck by how much the Confederate Constitution resembles the original
one. Now, of course, slavery is the important piece
of this, that the secessionists, slave holders, believed that their way of life was threatened
by Lincoln and by Constitutional laws as it unfolded in the courts. But otherwise, largescale
Republicanism was very much what they were also after.
Thank you.>>One more if you don’t mind.
>>Robert Tsai: Yes.>>I was thinking about when you mentioned
the socialist in Illinois [Inaudible] I know that they were religious in background, but
did they also have their own Constitution of some sort?
>>Robert Tsai: Right. This is a great question. There are hundreds of religious and secular
groups who held countercultural views. When we think of the dominant American system,
politically and socially and economically. And a number of them turned away from mainstream
American law and politics and reorganized themselves into collectives. And sometimes
they used let’s call them localized forms of selforganization, state law, local law,
municipal law sometimes, private law, a contract at other times.
The Icarians — this is the group I write about in Illinois — do all of those things
and more. And so I looked at the shakers and at some other groups. The way in which the
Icarians distinguished themselves, and this is kind of shocking, was how much they were
devoted to the law on a kind of grand scale. Unlike some groups, some countercultural groups,
they really believed that they needed a single, coherent and complicated constitution in order
to carry out the world. And so in 1850 they write their first constitution and then they
write several more after and so forth. It’s got to be one of the longest constitutions
anyone has ever written. It’s hundreds of provisions long. It purports to regulate almost
every aspect of political, social, and economic life that I can imagine and family life as
well. And they believed that this would be the kind of experiment that would really offer
a way of resisting unchecked capitalism as they saw it in the mid-19th Century.
Private law in this sense, they used contract law, they used Illinois’s state agricultural
laws to kind of authorize their kind of collectively owned farming project, all of this had to
be submitted to Illinois authorities, including the constitution they wrote to govern themselves
and it was approved. It’s just one of the really remarkable things about this.
And so what we see with their experience is it lasts quite a long time. It’s one of the
more successful kind of countercultural constitutional experiences; ultimately a kind of series of
crises, their mini republic, so to speak, bring it to an end. That’s why I end up writing
about them. I think they’re a fascinating group.
Any other questions? Well, I thank you very much.
[Applause]>>Doug Swanson: Don’t forget there is a book
signing. We will meet you one level up at the Archives bookstore in a couple of minutes.
[The presentation ended at 12:42 p.m.] 1

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