Rewriting the Constitution without Washington's permission


America's Forgotten Constitutions: Defiant Visions of Power and Community, by Robert L. Tsai, Harvard University Press, 352 pages, $35

What do white supremacists and black nationalists, abolitionists and Confederates, utopian socialists and crafty frontiersmen, embattled Indian tribes and mandarin globalist intellectuals have in common? They all wrote new constitutions, hoping to supersede the document adopted in Philadelphia in 1787. In America's Forgotten Constitutions, Robert L. Tsai, a professor of law at American University, tells their tales.

Each of these projects had at its heart a colorful man or small group of men (yes, it's pretty much all men) who were spurred to found a polity for their people. It would be fair to describe their efforts as "defiant." Another apt word would be "futile." Over eight substantial case studies, Tsai shows how the rebels were marginalized, co-opted, or crushed.

Consider the little republic of "Indian Stream," which squeezed for itself a temporary autonomy in the interstices of border conflicts between the United States and Canada. Declaring independence in 1832, these frontiersmen-fewer than a thousand of them-lived in what was then a legal netherworld between Quebec and New Hampshire, insisting they were part of neither. After three years of playing their surrounding jurisdictions off one another, the Indian Streamers were crushed by the military might of New Hampshire. (The federal government declined to join in.) But the ideas that animated them survive in America today. The Nevada rancher Cliven Bundy's recent attempts to defy the Bureau of Land Management's restrictions on his cattle grazing, for example, were rooted in one of the same ideas that inspired Indian Stream: a belief, as Tsai puts it, that "true political authority springs from productive use of the land."

The book's other subjects include a socialist communal cult called "Icaria" in mid-19th-century Illinois, the college professors and administrators who designed a one-world nation to quash the threat of nuclear war after World War II, and some Internet racists who encouraged their fellow white supremacists (but no vulgar skinhead ruffians, please) to swamp the Pacific Northwest and eventually break away from the United States. Tsai's subjects span a multiverse of fascinatingly conflicted and failed strivers. Aside from the abolitionist John Brown and his spiritual enemies, the Confederate founders, most of them have remained obscure.

Each story Tsai tells would require a novel to capture in full. The professor does not, alas, have a novelist's eye for incident and character. His stories beg for drama but get scholarly jurisprudence. Tsai is thorough-perhaps too thorough for optimal reader pleasure-in analyzing the political structures found in these various constitutions. He notes that they all followed the apple-pie traditions of "popular decision making, divided powers, and enumerated rights." Even far-out American rebels were American enough to have "accepted the idea that a legitimate claim to rule according to the will of the people must conform to a protocol."

Most modern Americans would probably see the characters in this book as kooks who didn't amount to much and got what they deserved. Still, some might feel stirrings of sympathy-say, for John Brown and the constitution he and his compatriots wrote as they plotted the destruction of slavery. The governing compact originally applied to their rebellious army, but they hoped to apply it to an actual living polity once they had some land and more popular support.

Similarly, one might understand why, after decades of slaughter and broken promises, the Indian activists behind the Sequoyah Constitution maneuvered to have a segment of land they controlled join the U.S. as its own state in 1905. And who could blame the disaffected African Americans hoping to carve out their own reparations for slavery in 1971 by settling on a farm in Bolton, Mississippi, and declaring it the Republic of New Afrika, dedicated to free, dignified, agrarian lives? That nascent nation was harassed into defeat and obscurity by federal agents via overwhelmingly forceful armed raids, allegedly just to serve warrants.

But approve or disapprove, you shouldn't ignore history's kooks. Chronicles of failure and defeat say as much about a nation's history and identity as success stories do. The ruthless hegemony of the official U.S. Constitution is an important fact about modern America.

This is true even though that Constitution has itself mutated. The most influential alternate constitution in American history is one Tsai mentions only in passing-what the New Deal economist Rexford Tugwell called the "emergent constitution." You know, the one where the federal government does pretty much whatever it wants, under whatever excuse it pleases, and all too frequently gets away with it. The nature of the "winning" Constitution becomes clearer once one sees what gets crushed beneath the statues and trampled in the parades celebrating the America that is.

The losing constitutions' partisans, meanwhile, practiced what Tsai calls "ethical sovereignty"-power wrapped up in a distinct vision of righteousness. Libertarians would certainly find many things to disagree with in the specifics of these would-be constitutions, which always respected certain liberties for certain people while denying others. (Separatist fanatics tend not to value free expression and free markets very highly.) But studying how and why they failed shows possibilities and pitfalls for political change. At least four do's and don'ts can be gleaned:

1. DO try to mesh with existing legal authority in a way that is not obviously hostile. The Icarians were a typical utopian socialist commune founded in 1848 by the French refugee Etienne Cabet. When he and his crew established a beachhead in Nauvoo, Illinois, in 1851, they persuaded the state to ratify the Icarians' existence as a joint-stock "agricultural society" that constituted its own "body politic and corporate." State legislators were happy for a time to let the Icarians do their own thing in their own space in Illinois. (One wishes Tsai had delved into the specifics of how this political coup was pulled off.)

Tsai calls this practice "interstitial resistance." Libertarians in New Hampshire's Free State Project practice a version of this today, striving both to influence local politics on its own terms and to craft spaces to thrive largely outside-or in defiance of-the state's reach. (In my experiences among the Free Staters, they find such attempts to live liberty in chosen fellowship more energizing and exciting than politics.) The Icarians schismed, in typical 19th-century utopian socialist fashion, and eventually their state charter was revoked, long after the community was no longer a thriving entity.

The 21st-century American state's level of officious interference makes this kind of world-within-the-world project unlikely to succeed so well today, on the aboveground level at least. But seeking interstices where you can do your own thing does allow you a certain kind of freedom. And as the New Afrikan Republic activists argued, American localism can allow even small dedicated groups to legitimately elect a sheriff-and "then we will have a [military force] legitimate under U.S. law, made up of people who can be deputized and armed."

Before that gets anyone too excited, remember another clear lesson from Tsai's study:

2. DO eschew violence. Claiming political or ideological space in America via violence failed for John Brown and ultimately for the Confederates. It would similarly fail for anyone trying it today.

Violence isn't the only sure losing strategy for large-scale change:

3. DON'T get obsessed with "cultural sovereignty." The Confederates, the Republic of New Afrika, and the white supremacists' fantasy of a "Northwest American Republic" all ran aground against a too-limited notion of who a polity was for—in each case a specific race, pursuing a specific set of lifeways. Tsai calls this "cultural sovereignty," as opposed to the ethical kind, and it just won't work in this multicultural, multiracial nation.

And politics itself can be an insuperable barrier:

4. DON'T assume that interacting with the existing constitutional order will guarantee success. The Indians who developed the Sequoyah Constitution thought they could convince the federal government to make them a state; the globalists behind the "World Constitution" thought the U.S. would ratify a surrender of its sovereignty. Both were mistaken. When you want big change, sometimes exit is required. But as the Republic of New Afrika and Northwest American Republic examples show, exiting American hegemony on the North American continent is quite a trick. Maybe the Seasteading movement, with its ideas about artificial ocean-bound communities, has the right idea: A truly fresh constitution might require a truly fresh homeland.

Even considering the above points doubtless marks a movement as already highly marginalized. Tsai does not necessarily recognize this. Having scrupulously taken these eccentric constitutionalists seriously on their own terms, he eventually goes native: He believes "the collective desire to be heard and to be treated as sovereign decision makers worthy of respect can be satisfied to some degree through the publication of a constitution." Constitution making, he writes, "can go some way toward altering public perceptions of an unpopular social group or political movement."

That's unlikely. In modern America, declaring your separation from the constitutional consensus is a good way to make people think you're a bunch of crazies, likely dangerous ones.

The best way to keep a culture's many tense affiliations, tendencies, and peoples together in peace is not a specific portmanteau constitution. It is a generic constitution of liberty-F.A. Hayek's term for a way of governing that respects as many people's rights to manage their own lives and property as possible. None of Tsai's characters were this dedicated to a wider vision of liberty for everyone, which is likely part of why they are remembered by few, revered by fewer.

The original U.S. Constitution, as much as it has failed us and itself, does win that kind of affection, to the extent that it approached the dream of justice under the blessings of liberty. Seeing where it has gotten us, though, the lover of liberty can't help but suspect that something was missing in the idea of a government of constrained powers, created and controlled by a written constitution.

Part of the success of American constitutionalism is that it forever, as Tsai writes, "wrested legal authority from the king and church and ushered in a world in which anyone could state a claim to rule." The last frontier of that process, unexplored even by Tsai's varied and passionate constitutionalists, is the ultimate in sovereignty, neither cultural nor ethical but personal: every man his own Constitutional Convention.