Americas Forgotten Revolutions

Revolution seems dead in America.

As Daniel Lansberg-Rodriguez’s Atlantic piece notes, thirty-seven of the world’s constitutions guarantee a right to revolution. France’s 1789 Declaration of the Rights of Man and the Citizen recognizes “a right to resist oppression” that has reappeared in subsequent French constitutions. This is something of a puzzle — why would constitutional framers undermine their work by legalizing revolt? Revolutionary framers are in a bind — they must repudiate government, but also establish a new government. The legal right to revolution is a middle ground, a constitution that allows revision. Lansberg-Rodriguez suggests this is what the French were thinking when they first drafted such a right. More recent constitutions like those of Germany and Rwanda include a right to revolution as a check against genocide. Unsurprisingly, nations that recognize this right undergo revolution fairly frequently.

Yet the American Constitution discourages revolution. The Bill of Rights checks the federal government but does not allow revolution, and Article V limits constitutional reform to gradual, difficult amendment. There are a few explanations for this. As Tocqueville and Hannah Arendt claim, American Revolutionaries did not flip the social order in the sense the French did. The American Revolution was not a revolution at all, but a conservative movement of colonial elites against a distant monarch. But Gordon Wood shows the American Revolution did upset the British colonial order, spurring Jefferson’s Declaration, with its Lockean right to revolution, and a wave of state constitutions legalizing local revolution. Federalist backlash to these radical Jeffersonian state constitutions gave us the inflexible, conservative, Madisonian federal Constitution we have today.

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There is an alternative. Since the founding, the America’s state constitutions have recognized a right to revolution or revision. Fourteen states require regular referenda calling for a constitutional convention. For example, every sixteen years New Hampshirites vote on whether to hold a convention. The revision process is fairly open — convention delegates tend to be political novices, outsiders, and reformers, and many states allow constitutional amendment through popular ballot initiative. Consequently, state constitutions have short lifespans — the average is 70 years, but dozens last only a generation.

If Americans ever followed Jefferson’s injunction to generational revolution, it is in revising the state constitutions. This frequent revision reflects states’ low barriers to constitutional amendment and their political cultures, which treat a constitution more as a manual than a bible. A healthy disdain for the law pervades the states. As a Louisiana lawyer quipped, “Constitutional revision in Louisiana, whether in conventions or by amendment, has been sufficiently continuous to justify including it with Mardi Gras, football, and corruption as one of the premier components of state culture.”

Libertarians have claimed the American Revolution and states’ rights, but American progressives can take them back. Mark Lutter’s recent post on this blog pushes American liberals to practice political exit or revolt, which Ezra Jones responds is impossible given the weakness of the American left. Neither is quite right. At the state level, the left is alive, well, and practicing exit by revising and rejecting state constitutions. For example, Pennsylvania wrote a constitution that provided widespread suffrage, tax-funded public education, debt forgiveness, and potentially allowed wealth redistribution — in 1776.

The federal government did not systematically protect these rights until the twentieth century. Jefferson’s writings inspired state legislators and judges in Wisconsin and Massachusetts to nullify the 1850 Fugitive Slave Act that authorized federal marshals to hunt runaway slaves. Private citizens rescued imprisoned runaways, impeded marshals, went to jail, took up arms in Kansas and Virginia, and boycotted Southern cotton. Emily Zackin’s new book shows the Populists and Progressives used state constitutions to protect the right to education, equitable working conditions, and a clean environment.

These forgotten state revolutions help us reconceive revolution, not as libertarian nullification of federal law, but as expansion of the legal polity. This is revolution as Locke and Jefferson understood it, as addressing historical abuses and expanding civil rights and economic rights. In a 1789 letter to Madison, Jefferson admitted an aim of revolution is economic equality through the abolition of debt, as the Jefferson scholar Merrill Peterson reminds us.

Though we might forget it, Jefferson gave us a legal right to progressive revolution.

Updated: October 9, 2020 — 6:31 am
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