One U.S. Constitution Just Wasn’t Enough
You can find a curious scene at the National Archives in Washington, D.C. Every day, thousands of Americans, mostly tourists, pass through the “Rotunda for the Charters of Freedom” to peer at old bits of paper. Amid enormous murals and marble columns, they lean over glass cases containing the Declaration of Independence, the Constitution, and the Bill of Rights. They might whisper familiar phrases to each other (“We the People,” “self-evident”), or ask one of the watching guards a careful question. Reverence is expected. Get too close or lean too far, and the guards will move you along. Flags are about, and the national heritage is on display.
A new book wants to disrupt this harmony. America’s Forgotten Constitutions: Defiant Visions of Power and Community, by Robert L. Tsai, is a history of constitutions written instead and in place of the U.S. Constitution. Looking at a diverse group of “folk legal theorists” from the early nineteenth to the early twenty-first centuries, Tsai assembles a collection of eight alternatives to the federal republic imagined in 1787. It’s a nicely conceived book, with each “defiant vision” taking up a chapter. And it’s engaging to read: Tsai is a law professor but avoids legalese. He writes briskly but attentively.
He shows that “We the People” has been a problem from the start, and that much has hinged on exactly how plural the pronoun is thought to be. In 1832 in the backwoods of New Hampshire, for instance, a few people refused the idea that they could be represented at all when they founded The Republic of Indian Stream. In this short-lived microrepublic, all the men were members of the legislative General Assembly and had a vote on what was law. A generation later, a dashing French socialist named Etienne Cabet founded the Icarian Nation in Illinois. Here, work was “a public function” and an aspect of citizenship. Money and taxes were abolished and, in theory, virtue flourished (though not without prompting: intricate laws were passed regulating all manner of conduct, including one law that forbade children from eating green fruit). Women were not citizens, but were afforded “the right to assist in the Assemblies and to take part in all discussions, to express their minds and defend their interests.”
Most radical was the 1856 Provisional Constitution drafted by northern abolitionists, including John Brown. In this righteous vision, “the people” were considerably broader and morally better. Ex-slaves would be citizens, all would be Christians, and a strong sense of purity would pervade the nation.
Rather than dismissing these ideas as silly utopias, Tsai treats them as part of the American legal tradition. And the result is counterfactual in the best sense: an array of unfamiliar and unsettling ideas, which show that the “original meanings” of 1787 (or their malleable afterlife in a “living constitution”) are not the only ones to have existed.
At the center of Tsai’s story is the Confederacy. The constitution that the seceding southern states wrote in 1861 differed from that of 1787 only in its explicit protection of slavery, something achieved by amending “a few erroneous sentences.” But it was the most successful and the most catastrophic of them all, given the fact that the United States became for a time two countries and fought a war. And it is a situation impossible to brush under the carpet because the Confederacy transformed the Union. The postbellum amendments reshaped the Constitution in fundamental ways, transforming it from a slave-owning federal republic into a modern nation state. By guaranteeing equal protection and due process, the Fourteenth Amendment in particular has changed the entire scope of U.S. federalism.
So Tsai gives us a history “characterized by adaptation and reversal, innovation and regression, fragmentation and reorganization.” He suggests that the United States is less about stable liberalism and expanding freedom than aggressive democracy and applied power. The framers in 1787 were wary of sovereignty, and tried to divide, distance, check and balance its exercise. But those who came after were less tentative. Many had radically different ideas of what it was that popular sovereignty should be rooted in. For the backwoodsmen, sovereignty was about the outdoorsy vigor of the pioneer; for the socialists and abolitionists, it was about ethical mission. For the Confederates, it was about racial dominance (or, as Tsai sometimes puts it, culture). None were squeamish about organising power to pursue their object.
Sometimes this involved more defensive strategies. In 1905, a group of Indians from a variety of native peoples united to entrench “tribal sovereignty” against federal power. They designed a constitution for a new state called Sequoyah, in which, proponents urged, “different history, different associations, and different sentiments” could be preserved from extinction. No one in Washington listened, and Sequoyah was swamped by the establishment of Oklahoma in 1907.
Tsai is not exhaustive on the dynamics of power, and many of his constitutions tend to conservatism in social relationships (none could be called feminist). But his picture is far richer than the grim founder worship usually found in American political orthodoxy.
Nor is the picture as navel-gazingly national: Tsai shows that American political thinking and constitution writing has always been global. Indeed in 1947 a group of academics at the University of Chicago drafted a constitution for “the Federal Republic of the World.” By globalizing the federal structure of 1787, the professors envisioned “active democracy” across the world.
In recent years, visions of transnational racial polities have dominated. In 1968 black nationalists created the Republic of New Afrika, drafted in Detroit but destined for the South as a country for any and all “Afrikan people in North America.” And white supremacists continue to advocate for a homeland in the Pacific Northwest for “the Aryan peoples of the earth.” Their constitution was drafted on an Internet forum, which, one contributor conceded, “isn’t exactly Liberty Hall in Philadelphia.” They do, however, claim the founding fathers as “White Nationalists.”
These constitutions do not amount to a coherent intellectual tradition. Bits of some agree with parts of others, and bits of others contrast with parts of some. Often, they don’t speak to each other at all. But something that does unite them is a consistent—in fact a constant—engagement with 1787. For Tsai’s constitution writers, the U.S. Constitution stands as an obligatory model, something they necessarily define themselves in relation to. All designed some sort of republic. All detailed mechanisms for “popular decision making, divided powers, and enumerated rights.” And all, in the end, underline just how largely the Constitution figures in the American political imagination: less a charter of freedom than a document of power.