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>> 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 archives.gov/calendar. 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.]
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