OUR CONSTITUTIONALISM OF FORCE

Introduction

The insurrectionists who attacked the Capitol on January 6, 2021, went to Washington, D.C. to assert a set of legal claims. Their claims were primarily about who won the election, 1 1 See Nicholas Fandos & Emily Cochrane, After Pro-Trump Mob Storms Capitol, Congress Confirms Biden’s Win, N.Y. Times (Jan. 6, 2021), https://www.nytimes.com/​2021/​01/​06/​us/​politics/​congress-gop-subvert-election.html (on file with the Columbia Law Review). ... Close but they also asserted subsidiary arguments about whose opinion on that question mattered 2 2 “Nobody voted for Joe Biden . . . ” followed by the sneer, directed at a Black police officer defending the Capitol: “You hear that, guys, this nigger voted for Joe Biden.” January 6 Committee Meeting With Capitol and D.C. Police, C-SPAN, at 01:23 (July 27, 2021), https://www.c-span.org/video/?513434-1/capitol-dc-police-testify-january-6-attack (on file with the Columbia Law Review) (internal quotation marks omitted) (providing testimony of Officer Harry Dunn). ... Close and how dis­agreements ought to be settled. 3 3 See Fandos & Cochrane, supra note 1. ... Close On each of these points, the rioters were certain they were right. You might think that because the rioters were mis­informed 4 4 The fact that the January 6 rioters were misinformed puts them in good company with Americans of the Founding Era, as “[n]o one . . . can deny the prevalence of conspiratorial fears among the Revolutionaries.” Gordon S. Wood, Conspiracy and the Paranoid Style: Causality and Deceit in the Eighteenth Century, 39 Wm. & Mary Q. 401, 403 (1982). Indeed, one historian has argued that the American Revolution is rooted in the actions of “highly mobilized” disparate groups, each embracing “violent direct action on the basis of false beliefs.” Jordan E. Taylor, What Pro-Trump Insurrectionists Share—and Don’t—With the American Revolution, Wash. Post (Jan. 7, 2021), https://
www.washingtonpost.com/outlook/2021/01/07/what-pro-trump-insurrectionists-share-dont-with-american-revolution/ (on file with the Columbia Law Review); see also Jordan E. Taylor, Misinformation Nation: Foreign News and the Politics of Truth in Revolutionary America (2022) (elaborating this thesis).
Instead, what most sets January 6 apart is what we are beginning to learn about the involvement of the President himself, which has no precedent in American history. See Luke Broadwater, ‘Trump Was at the Center’: Jan. 6 Hearing Lays Out Case in Vivid Detail, N.Y. Times (June 9, 2022), https://www.nytimes.com/2022/06/09/us/politics/trump-jan-6-hearings.html (on file with the Columbia Law Review) (last updated June 11, 2022). That, however, is a topic for another article. ... Close and their message unsophisticated, their constitutional ideas don’t matter. But I worry that they matter a great deal. And I do not think we can yet tell how much their beliefs will change our legal order.

In saying that the rioters’ beliefs about the constitution matter, I’m not saying anything popular constitutionalism scholars haven’t been saying these last twenty years or so. But I am saying it in a less happy, optimistic tone. And I will add that the many scholars who have elaborated upon Larry Kramer’s central idea in The People Themselves have gotten popular constitutionalism, as it has actually existed in American life, quite wrong, primarily because they have failed to take violence seriously. 5 5 Larry Kramer ended The People Themselves envisioning a Supreme Court that showed the same deference to popular opinion that lower courts accord the Court “with an awareness that there is a higher authority out there with power to overturn their decisions—an actual authority, too, not some abstract ‘people’ who spoke once, two hundred years ago, and then disappeared.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 253 (2004). We’ve had a chance to see how that would work in practice—not at the Supreme Court but in Congress. In a profile in the Atlantic, Congressman Peter Meijer (R–Mich.) recalled:
“When the Capitol was finally secured and members returned to the House chamber, [he] expected an outraged, defiant House of Representatives to vote in overwhelming numbers to certify the election results, sending a message to the mob that Congress would not be scared away from fulfilling its constitutional obligations. But as he began talking with his colleagues, he was shocked to realize that more of them—perhaps far more of them—were now preparing to object to the election results than before the riot.”
Tim Alberta, What the GOP Does to Its Own Dissenters, Atlantic (Dec. 7, 2021), https://​www.theatlantic.com/​magazine/archive/2022/01/peter-meijer-freshman-republican-impeach/​620844/ [https://perma.cc/LJ8T-3SQ7]. One member told Congressman Meijer “that no matter his belief in the legitimacy of the election, he could no longer vote to certify the results, because he feared for his family’s safety.” Id. ... Close Riot is not only, as Dr. Martin Luther King Jr. famously put it, “the language of the unheard.” 6 6 Interview by Mike Wallace with Dr. Martin Luther King Jr. (CBS television broadcast Sept. 27, 1966); see also 60 Minutes Staff, MLK: A Riot Is the Language of the Unheard, CBS News (Aug. 26, 2013), https://www.cbsnews.com/news/mlk-a-riot-is-the-language-of-the-unheard/ (on file with the Columbia Law Review). ... Close It has long been, and continues to be, the language of the heard as well. 7 7 Kramer’s The People Themselves rediscovered the eighteenth-century Whiggish understanding of a constitution defined, in part, by the people out-of-doors and suggested that we use this as a model for modern constitutional regeneration. But the violence somehow disappeared as he translated that tradition from its eighteenth-century origins to modern life. See Kramer, supra note 5, at 249 (suggesting impeachment, budgetary maneuvers, and other legislative solutions to judicial overreach—not tarring and featherings, whippings, the stocks, the destruction of the officials’ homes, coerced resignations in front of jeering crowds, or other eighteenth-century options). From the beginning, critics needled Kramer for suggesting a theory that, they said, boiled down to mob rule. But even those critics did not seem to take Kramer seriously enough to worry, as I do, that “the people’s” methods are bloody, instead arguing primarily that the idea was theoretically unsatisfying. See, e.g., Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1622 (2005) (book review) (arguing that mobs cannot continually sit, cannot claim to speak for all of the people, cannot make consistent or reviewable decisions, and “cannot exercise authority; they can only exercise power”); L.A. Powe, Jr., Are “the People” Missing in Action (and Should Anyone Care)?, 83 Tex. L. Rev. 855, 857 (2005) (book review). ... Close

The early literature of “popular constitutionalism” aimed to ennoble and validate popular efforts to stir up the stasis and order of the American constitution—usually in progressive directions. 8 8 In a provocative 1988 article introducing a constitutional and historical argument for popular amendment of the Constitution, Professor Akhil Amar argued that “[i]ndividual rights, federalism, separation of powers, and ordinary representation all exist under our Constitution, but they all derive from a higher source,” that is, “‘We the People of the United States.’” Akhil Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1103–04 (1988). A few years later, Professor Bruce Ackerman’s multivolume work developed a theory that throughout American history there have indeed been “constitutional moments,” in which “We the People” have stood up in defense of a new understanding of the Constitution, eventually changing its meaning. See generally ­Bruce Ackerman, We the People (1991–2018) (highlighting moments in American history that widened the franchise and expanded rights beyond the scope of the constitution’s text). But, as Professor Randy Barnett later pointed out, having made the “Second Reconstruction” of the 1960s one such constitutional moment, Ackerman refused to see widespread popular mobilization against desegregation in the 1970s as constitutionally significant, describing it instead as the end of popular constitutional activity. Randy E. Barnett, We the People: Each and Every One, 123 Yale L.J. 2576, 2585 (2014). Professor Reva Siegel’s work stands as an important exception to this progressive-only view of when the “people’s” ideas should be thought “constitutional,” as she has increasingly focused on the constitutional vitality of social movements on the right. See, e.g., Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 192–94 (2008) (exploring the social movement that preceded the decision in District of Columbia v. Heller, 555 U.S. 570 (2008), examining how the “boundary between constitutional law and constitutional politics has been negotiated”). But all of these scholars have a blind spot when it comes to how violence has shaped the law. ... Close But in rediscovering that the American constitutional order is not static, this literature has ignored one of the dominant mechanisms of change. The appeal to arms as a way of validating legal arguments is worked deeply into our intellectual history and culture. It was entailed upon us by our Founding generation, who sin­cerely believed that people “are only as free as they deserve to be” and, relatedly, that one can tell how much freedom people deserve by how much blood they were willing to shed to obtain it. 9 9 This is Samuel Adams’s axiom from the Revolutionary era that “nations were as free as they deserved to be.” François Furstenberg, Beyond Freedom and Slavery: Autonomy, Virtue, and Resistance in Early American Political Discourse, 89 J. Am. Hist. 1295, 1295 (2003) (internal quotation marks omitted) (quoting Letter from Benjamin Rush to John Adams (July 20, 1812), in The Spur of Fame: Dialogues of John Adams and Benjamin Rush, 1805–1813, at 234, 234 (John A. Schutz & Douglass Adair eds., 1966)). ... Close

The optimism of early popular constitutionalism scholarship built on the work of so-called “neo-Whig” historians, the school dominated by Pro­fessors Bernard Bailyn, Edmund Morgan, and Gordon S. Wood, among others. 10 10 This group of scholars has been given several labels, including “Whig” historians, “consensus” school, and neo-Whig. See, e.g., Thomas P. Slaughter, Crowds in Eighteenth-Century America: Reflections and New Directions, 115 Pa. Mag. Hist. & Biography 3, 4–6 (1991) [hereinafter Slaughter, Crowds in Eighteenth-Century America] (discussing the “Whig,” “neo-Whig,” or “consensus” interpretative perspective). All agree that “consensus school” fairly points to Professor Richard Hofstadter and scholars grouped around his era and paradigm of thought, but Bailyn and Wood have also been regularly tarred with the “consensus” epithet over the years. Justin Driver, The Consensus Constitution, 89 Tex. L. Rev. 755, 757 (2011). See Bernard Bailyn, Ideological Origins of the American Revolution (2d ed. 1992) [hereinafter Bailyn, Ideological Origins]; Gordon S. Wood, The Creation of the American Republic 1776–1787 (2d ed. 1998) [hereinafter Wood, Creation of the American Republic]. ... Close This is hardly surprising, as these were still the leading working historians when Professors Bruce Ackerman, Akhil Amar, Larry Kramer, and the rest were first developing their theories. And as neo-Whig history, especially Wood’s Creation of the American Republic, remains the go-to citation for Supreme Court opinions, it is, in a sense, our official state narrative. 11 11 Wood has not long been out of the Court’s mind over the past three decades. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 805 (2021) (Roberts, C.J., dissenting); Rucho v. Common Cause, 139 S. Ct. 2484, 2512 n.1 (2019) (Kagan, J., dissenting); Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1878 (2016) (Breyer, J., dissenting); Bank Markazi v. Peterson, 136 S. Ct. 1310, 1330–31 (2016) (Roberts, C.J., dissenting); Evenwel v. Abbott, 136 S. Ct. 1120, 1137, 1138–39 (2016) (Thomas, J., concurring in the judgment); Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2659 n.2 (2015); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 117 (2015) (Thomas, J., concurring in the judgment); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 353 (2010); Vieth v. Jubelirer, 541 U.S. 267, 356 (2004) (Breyer, J., dissenting); Alden v. Maine, 527 U.S. 706, 768 (1999) (Souter, J., dissenting); Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring); United States v. Winstar Corp., 518 U.S. 839, 872 (1996); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 137, 151 & n.45, 155 n.50, 160, 164 n.58 (1996) (Souter, J., dissenting); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 251 (1995) (Stevens, J., dissenting) (citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 523 (1989) (Scalia, J., concurring in the judgment)); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 826 n.38 (1995); id. at 911 (Thomas, J., dissenting); United States v. Lopez, 514 U.S. 549, 576 (1995) (Kennedy, J., concurring); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995); Weiss v. United States, 510 U.S. 163, 184 (1994) (Souter, J., concurring) (quoting Freytag v. Comm’r, 501 U.S. 868, 883 (1991)); Freytag, 501 U.S. at 883, 885; id. at 904 n.4 (Scalia, J., concurring). Bailyn’s Ideological Origins of the American Revolution was an earlier favorite, only recently giving way to Wood’s work in citation count. See Obergefell v. Hodges, 13 S. Ct. 2584, 2634 (2015) (Thomas, J., dissenting); McCullen v. Coakley, 573 U.S. 464, 489 n.5 (2014); McDonald v. City of Chicago, 561 U.S. 742, 815 (2010) (Thomas, J., concurring in part and concurring in the judgment); Citizens United, 558 U.S. at 353; Alden, 527 U.S. at 768, 799 & n.31 (Souter, J., dissenting); Seminole Tribe of Fla., 517 U.S. at 151 (Souter, J., dissenting); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 360 (1995) (Thomas, J., concurring); United States v. Verdugo-Urquidez, 494 U.S. 259, 287, 288 (1990) (Brennan, J., dissenting); County of Allegheny v. ACLU, 492 U.S. 573, 612 (1989), abrogated by Town of Greece v. Galloway, 572 U.S. 565 (2014); Lynch v. Donnelly, 465 U.S. 668, 722 n.28 (1984) (Brennan, J., dissenting); Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 127 n.10 (1982); Larson v. Valente, 456 U.S. 228, 244 n.18 (1982); Nevada v. Hall, 440 U.S. 410, 415 n.8 (1979). Bailyn’s work as an editor of primary sources was cited passim in Printz v. United States, 521 U.S. 898, 910 (1997); id. at 946 n.5 (Stevens, J., dissenting); Thornton, 514 U.S. at 813 n.23, 814 n.26, 820 & n.30, 821 n.31, 825 n.36, 826 n.40, 833 n.47; id. at 880 n.17 (Thomas, J., dissenting). ... Close One expects to find it reflected in legal scholarship. 12 12 See Driver, supra note 10, at 759–67 (describing the rise and fall of the consensus school in history departments and regretting that “the widespread embrace of” the conflict counternarrative “within the history department has yet to migrate across campus to the law school”); Christopher Tomlins, The Consumption of History in the Legal Academy: Science and Synthesis, Perils and Prospects, 61 J. Legal Educ. 139, 144–45 (2011) (book review) (describing how useful Bailyn’s and Wood’s histories have been, first to liberal legal academics and then to conservative politicians and lawyers). ... Close

But the view of the neo-Whig school is not neutral. 13 13 No works of history are. A journalist once asked Eric Foner, the acclaimed Civil War historian, “[W]hen did historians stop relating facts and start all this revising of interpretations of the past?” He replied, “Around the time of Thucydides.” Eric Foner, Who Owns History? Rethinking the Past in a Changing World, at xvii (2003). Historians strive to tell a true story about the past, but in choosing some facts to emphasize and build into a coherent narrative, we suppress available alternatives. We do our best to characterize the past truthfully, knowing that other historians with equal integrity will make different choices. We welcome well-constructed and deeply researched alternatives when they come because the competing iterations build together toward something like the true complexity of the past. Of course, I do not mean to “imply that all historical arguments are created equal” or that historians “stand helpless” unable “to distinguish divergent accounts.” William J. Novak, Constitutional Theology: The Revival of Whig History in American Public Law, 2010 Mich. St. L. Rev. 623, 628. ... Close A theme of neo-Whig history is that the American Revolution unleashed, in Bailyn’s words, a “contagion of liberty,” subjecting slavery and the other injustices of its day to “severe pressure” and advancing a “spirit of . . . idealism” at a “rapid, irreversible, and irresistible” pace. 14 14 Bailyn, Ideological Origins, supra note 10, at 230–32, 246. ... Close Morgan taught the “American Revolution” as Americans’ “noble,” “daring,” and “successful” “search” for “nothing more or less than the principle of human equality”—“a discovery that would turn the course of history in a new direction . . . and liberate us from our past as it was soon to liberate them.” 15 15 Edmund S. Morgan, The Birth of the Republic, 1763–89, at 3, 66 (4th ed. 2013). To be sure, the spirit of optimism pervading these works was not naiveté. It was an effort to tell a story about the survival of a republican aspiration to gradualist, nonviolent, pluralistic social change, and these works’ relative optimism must be read in light of the recent conclusion of a war against authoritarianism (my thanks to Norm Silber for this insight). ... Close Wood, Bailyn’s student, emphasized the thought of the Federalists because, he explained, “the Federalists’ intellectual achievement really transcended their particular political and social intentions” and “embodied what Americans had been groping towards from the beginning of their history.” 16 16 Wood, Creation of the American Republic, supra note 10, at 593–615 (emphasis omitted). ... Close Wood argued that Federalist ideas would endure and underpin a distinctly “American System of Government,” 17 17 Id. ... Close even as those ideas were “adopted and expanded by oth­ers.” 18 18 Id. ... Close One aspect of the Founders’ genius, Wood insisted, was that they “institutionalized and legitimized revolution,” such that “new knowledge” could be incorporated into governance “without resorting to violence.” 19 19 Id. at 614. ... Close

This view of history must be understood as an artifact of a particular moment. In the 1950s and 1960s, Americans expressed a higher degree of trust in their government than at any other point since. 20 20 Pew Rsch. Ctr., Beyond Distrust: How Americans View Their Government 18 (2015), https://www.pewresearch.org/politics/2015/11/23/1-trust-in-government-1958-2015/ [https://perma.cc/KT6L-8NCV]. ... Close Victory in World War II gave the nation a coherent, if not messianic, idea of American cul­ture and destiny. An all-consuming battle against Soviet ideology then encouraged intellectual efforts to prove the integrity of the American political project. 21 21 See Alfred F. Young & Gregory H. Nobles, Whose American Revolution Was It? Historians Interpret the Founding 48–51 (2011) (quoting a 1949 American Historical Association presidential address that “[t]otal war, whether it be hot or cold, enlists everyone and calls upon everyone to assume his part”). ... Close A muscular administrative state had yet to fall under the relentless attack of the 1980s, and it seemed that the Federalists’ vision—Alexander Hamilton’s vision—for American empire was ascendant. 22 22 See Robert L. Rabin, Legitimacy, Discretion, and the Concept of Rights, 92 Yale L.J. 1174, 1178–79 (1983) (describing the expansion of the administrative state); see also Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law 29 (2012) (“The Federalist or Hamiltonian wing of the founding generation was keenly aware of the need to create a government with broad authority that could command the respect and the loyalty of the populace.”). ... Close The successes of the Civil Rights movement, first in Brown v. Board and then the Civil Rights Act, emboldened historians to downplay the horror of slavery as a doomed theme. 23 23 See Young & Nobles, supra note 21, at 57–58 (discussing Edmund Morgan’s deficits on this score). Those scholars who discussed race more directly during the 1960s were “like the white mainstream culture from which most of them came and to which most of them spoke, less concerned with blacks themselves than with white attitudes and responses toward blacks.” Peter H. Wood, “I Did the Best I Could for My Day”: The Study of Early Black History During the Second Reconstruction, 1960 to 1976, 35 Wm. & Mary Q. 185, 189 (1978). And how could it be otherwise? In historical accounts concerned with the white citizen’s “inevitable” realization of his nation’s majestic core values of liberty and equality, the Black American can only be an inert object—any amelioration of his position is but evidence of others’ moral progress. In 1968, in his Presidential Address, the leader of the Organization of American Historians warned against African Americans’ insistence “on visibility, if not overvisibility, in the textbooks,” a project that could “win little support from true scholarship.” Id. at 218–19 (internal quotation marks omitted) (quoting Thomas A. Bailey, The Mythmakers of American History, 55 J. Am. Hist. 5, 7–8 (1968)). “The luckless African-Americans while in slavery were essentially in jail; and we certainly would not write the story of a nation in terms of its prison population.” Id. at 219 (internal quotation marks omitted) (quoting Bailey, supra, at 8). ... Close It is in that context that the cheerful,  triumphant neo-Whig  version  of  American  history  emerged. 24 24 Lin-Manuel Miranda’s musical Hamilton, which opened during the Obama presidency, is like the neo-Whig history in that it emerged in another moment of optimism. It barely mentions slavery, uses actors of color as the Patriot Founders, and casts white actors for the Loyalists and King George. It thereby associates the “freedom” and “liberty” that the American Patriots fought for with the freedom struggles of Black and brown peoples against white supremacist and colonial regimes. Many of those Patriot Founders, however, owned slaves or otherwise participated in or profited from Black slavery, a vast system of kidnapping and torture and rape. The actual historical figures Hamilton depicts knew that slavery was wrong but founded a nation with slavery at its heart anyway. See Paul Finkelman, Slavery and the Constitutional Convention: Making a Covenant With Death, in Beyond Confederation: Origins of the Constitution and American National Identity 188, 193–97 (Richard Beeman, Stephen Botein & Edward C. Carter II eds., 1987). The musical’s innovative casting works an insidious erasure of that history. This was not, of course, the playwright’s intention. There was a poignant moment soon after the transition to the Trump presidency that seemed to highlight that the optimism or, perhaps, the complacency of the Obama years had always been important context supporting the show’s ebullient message. See Christopher Mele & Patrick Healy, ‘Hamilton’ Had Some Unscripted Lines for Pence. Trump Wasn’t Happy., N.Y. Times (Nov. 19, 2016), https://www.nytimes.com/
2016/11/19/us/mike-pence-hamilton.html (on file with the Columbia Law Review). With Vice President Mike Pence in the audience, the cast of Hamilton evidently did not feel that the show, by itself, did enough to represent their “American values,” including their stance on the “inalienable rights” of “diverse America.” Id. ... Close These historians tried to gather a compelling narrative from the mass of information in the past and make it advance sensibly toward their present. This is not a criticism of their work; that is the historian’s craft.

We’re writing in a different context now. Armed groups have surround-ed state legislatures to intimidate them into passing or rescinding legislation. 25 25 See Mike Baker, Armed Protesters Angry Over Virus Restrictions Try to Force Their Way Into the Oregon Statehouse., N.Y. Times (June 8, 2021), https://www.nytimes.com/
2020/12/21/world/oregon-coronavirus-protests.html (on file with the Columbia Law Review) (reporting that armed protesters tried to enter the Oregon State Capitol in December 2020 to object to COVID-19 restrictions); Katelyn Burns, Armed Protesters Entered Michigan’s State Capitol During Rally Against Stay-At-Home Order, Vox (Apr. 30, 2020), https://www.vox.com/​policy-and-politics/​2020/4/30/21243462/armed-protesters-michigan-capitol-rally-stay-at-home-order [https://perma.cc/K3US-A3EH] (reporting that armed protestors entered the Michigan Capitol to protest Governor Gretchen Whitmer’s shelter-at-home order); Bill Chappell, Richmond Gun Rally: Thousands of Gun Owners Converge on Virginia Capitol on MLK Day, NPR (Jan. 20, 2020), https://www.npr.org/2020/01/20/
797895183/richmond-gun-rally-thousands-of-gun-owners-converge-on-virginia-capitol-on-mlk-d [https://perma.cc/G7ZC-MSE8] (reporting that thousands of gun owners and armed militia members gathered at the Virginia State Capitol to protest new gun restrictions); John D’Anna, As Nation Braces for Armed Protests, Arizona Showcases How First and Second Amendments Intersect—or Collide, azcentral (Jan. 16, 2021), https://www.azcentral.com/​story/​news/​politics/​arizona/2021/01/16/armed-protests-arizona-first-and-second-amendments-intersect/4183132001/ [https://perma.cc/DWS4-WWNW] (reporting that armed protesters gathered outside the Arizona Capitol to protest the results of the 2020 presidential election); Katie Hall, Armed Gun Rights Activists Gather at Texas Capitol, Say Protest Is ‘Not About the Election’, Austin American-Statesman (Jan. 17, 2021), https://www.statesman.com/​story/​news/​2021/​01/​17/​protests​-austin-capitol-texas-live-updates-election-2020/4182139001/ [https://perma.cc/6VDM-GBQ4] (last updated Jan. 18, 2021) (reporting that about one hundred protestors, many of them armed, gathered outside the Texas Capitol to support gun rights); Stephanie Lai, Luke Broadwater & Carl Hulse, Lawmakers Confront a Rise in Threats and Intimidation, and Fear Worse, N.Y. Times (Oct. 1, 2022), https://www.nytimes.com/2022/10/01/us/politics/violent-threats-lawmakers.html (on file with the Columbia Law Review); Grant Schulte, Activists With Assault Rifles Stir Fears at Nebraska Capitol, AP News (Feb. 24, 2020), https://apnews.com/​article/​88b9dd6f34d930704273bd03fa0835f8 [https://perma.cc/9ZZ7-66XZ] (reporting that protesters entered the Nebraska Capitol in February 2020 with loaded, semi-automatic rifles to protest proposed restrictions on gun ownership); Shauna Sowersby & David Kroman, Armed Protesters in Olympia Occupy Capitol Steps, Governor’s Mansion Lawn, Crosscut (Jan. 6, 2021), https://crosscut.com/​politics/​2021/​01/​armed-protesters-olympia-occupy-capitol-steps-governors-mansion-lawn [https://perma.cc/4Z3Y-9DA5] (reporting that hundreds of armed protesters occupied the steps of the Washington State Capitol demanding the results of the November election be overturned); Ben Tobin, At Kentucky Capitol, You Can Open Carry a Gun . . . But Don’t Conceal Those Umbrellas, Courier J. (Jan. 8, 2020), https://www.courier-journal.com/story/news/politics/ky-legislature/2020/01/
08/kentucky-state-capitol-photo-circulates-men-guns/2843722001/ [https://perma.cc/RZ96-HGDE] (last updated Jan. 9, 2020) (reporting that gun owners entered the capitol rotunda in Kentucky to protest proposed restrictions on gun restrictions). ... Close

This behavior has gone unpunished. 26 26 See, e.g., Jeremy Kohler, “Sense of Entitlement”: Rioters Faced Few Consequences Invading State Capitols. No Wonder They Turned to the U.S. Capitol Next., ProPublica (Jan. 19, 2021), https://www.propublica.org/article/sense-of-entitlement-rioters-faced-no-consequences-invading-state-capitols-no-wonder-they-turned-to-the-u-s-capitol-next [https://perma.cc/6SZG-ZVXC] (reporting that few, if any, charges were filed in several state capitol invasions). ... Close Anti-government extremists laid a months-long plot to kidnap a state governor. 27 27 Nicholas Bogel-Burroughs, Shaila Dewan & Kathleen Gray, F.B.I. Says Michigan Anti-Government Group Plotted to Kidnap Gov. Gretchen Whitmer, N.Y. Times (Oct. 8, 2020), https://www.nytimes.com/2020/10/08/us/gretchen-whitmer-michigan-militia.html (on file with the Columbia Law Review) (last updated Apr. 13, 2021). ... Close Elected officials regularly receive death threats, and their homes and the homes of public health officials are picketed by armed men. 28 28 See Bill Chappell, Michigan Secretary of State Says Armed Protestors Descended on Her Home Saturday, NPR (Dec. 7, 2020), https://www.npr.org/sections/biden-transition-updates/​2020/​12/07/943820889/michigan-secretary-of-state-says-armed-protesters-descended-on-her-home-saturday [https://perma.cc/E5KC-MVSP] (showing armed protestors at the home of the Michigan secretary of state in December 2020); Amy Donaldson, Anti-Mask Protestors Target State Epidemiologist Dr. Angela Dunn, Deseret News (Oct. 29, 2020), https://www.deseret.com/​utah/​2020/​10/29/21540624/anti-mask-protesters-target-state-epidemiologist-dr-angela-dunn [https://perma.cc/U8FB-RBRG] (showing protestors targeted the home of Utah’s state epidemiologist); Pete Grieve, Gunshot Struck Front Door of Ohio Assistant Medical Director’s Residence, Spectrum News 1 (Jan. 25, 2021), https://spectrumnews1.com/oh/columbus/news/2021/01/25/mary-kate-francis-ohio-department-of-health-shots-fired-residence-home [https://perma.cc/W9RT-T6X3] (reporting that a gunshot struck the front door of an Ohio public health official’s home); Gary Horcher, Protestors Break Through Gates at Governor’s Mansion in Olympia, Storm to Front Door, KIRO 7 (Jan. 7, 2021), https://www.kiro7.com/news/​local/protesters-break-through-gates-governors-mansion-olympia/​C5EC7W2MCZBK​RA6RFCEJMSRYCE/ [https://perma.cc/Z3D6-67LP] (reporting that armed protestors broke through the gates of Washington’s governor’s mansion and quoting one protestor saying, “We pay for this mansion, so yeah we’re taking it over”); Bob Jacob, Protestors Gather Outside of Dr. Amy Acton’s Home, Clev. Jewish News (May 3, 2020), https://www.clevelandjewishnews.com/
news/local_news/protesters-gather-outside-of-dr-amy-acton-s-home/article_fc0a516c-8d7b-11ea-b3ef-fbbfcd2244ef.html [https://perma.cc/VYP8-54MF] (showing, in May 2020, armed protestors gathered outside of the home of the director of Ohio’s Department of Health); KOIN 6 News Staff, Photos: Armed Protestors Gather in Front of Gov. Brown’s Residence, KOIN 6 (Nov. 22, 2020), https://www.koin.com/news/oregon/photos-armed-protesters-gather-in-front-of-gov-browns-house/ [https://perma.cc/22XV-JYJM] (showing armed protestors in front of the Oregon governor’s home); Siobhan Lopez, Sununu Says Inauguration Ceremony Canceled Because of Concerns Over Armed Protestors, WMUR 9 (Dec. 30, 2020), https://www.wmur.com/article/chris-sununu-2021-inauguration-canceled/
35097969# [https://perma.cc/M4HG-KZ9J] (reporting the New Hampshire governor’s announcement cancelling his outdoor inauguration due to armed protestors gathering outside his home for several weeks, including one individual who was arrested in his backyard with over two dozen rounds of ammunition); Jake Zuckerman, Pandemic Brings Protests, and Guns, to Officials’ Personal Homes, Ohio Cap. J. (Jan. 27, 2021), https://ohiocapitaljournal.com/​2021/​01/​27/​pandemic-brings-protests-and-guns-to-officials-personal-homes/ [https://perma.cc/EN2A-TUTH] (reporting that armed protestors gathered at a former Ohio congresswoman’s home); see also Camryn Justice, Protestors Allegedly Supporting Trump Gather Outside State Rep. Weinstein’s Hudson Home, ABC News 5 Clev. (Jan. 24, 2022), https://www.news5cleveland.com/​news/​democracy-2020/​ohio-politics/protesters-allegedly-supporting-trump-gather-outside-state-rep-weinsteins-hudson-home [https://perma.cc/6FGM-YDCZ] (last updated Jan. 25, 2022) (showing protestors at the home of Ohio Representative Casey Weinstein). ... Close A growing percentage of Americans now believe that force is justified to make political change. 29 29 See Rachel Kleinfeld, The Rise of Political Violence in the United States, 32 J. Democracy 160, 167 (2021) (finding that the percentage of Democrats and Republicans who believed that violence was sometimes justified to advance their political goals approximately doubled from 2017 to 2020); Larry Diamond, Lee Drutman, Tod Lindberg, Nathan P. Kalmoe & Lilliana Mason, Opinion, Americans Increasingly Believe Violence Is Justified if the Other Side Wins, Politico (Oct. 1, 2020), https://www.politico.com/news/​magazine/​2020/​10/01/political-violence-424157 [https://perma.cc/8N9X-PGB6] (last updated Oct. 9, 2020) (finding that “the willingness of Democrats and Republicans alike to justify violence as a way to achieve political goals has essentially been rising in lockstep,” such that 26% of Americans with a strong political affiliation are “quite willing to endorse violence if the other party wins the presidency”); see also Robert Pape, Why We Cannot Afford to Ignore the American Insurrectionist Movement, Chi. Project on Sec. & Threats (Aug. 6, 2021), https://cpost.uchicago.edu/research/domestic_extremism/why_we_cannot_
afford_to_ignore_the_american_insurrectionist_movement/ [https://perma.cc/42UZ-UBNU] (concluding from a survey that “the insurrectionist movement is more mainstream, cross-party, and more complex than many people might like to think”). ... Close In this context, it no longer makes sense to celebrate America as exceptional because we have discovered how to engage in politics “without resorting to violence.” 30 30 Wood, Creation of the American Republic, supra note 10, at 613–14. ... Close Instead, it makes more sense to ask: What is the path that led us here?

There are more than enough signs, for those looking to find them, that violence has been an integral part of the American system of govern­ment from the Founding era. That is because we are the inheritors of not one constitutional tradition from that era but two. One is a constitution-alism of institutions created by text along with a practice of turning to those institutions to resolve political differences. 31 31 See supra notes 16–19 and accompanying text. ... Close We have been taught to understand that this is the end-all-be-all. But that’s not right.

We are also the inheritors of the Founders’ unwritten constitutional tradition. And under the unwritten constitution of their upbringing, the Founders made claims through action, won rights through usage, and maintained rights through uninterrupted custom. 32 32 As I have previously argued, “[H]aving grown up as Britons, and having lost friends and family in a war to defend their rights as such, they” would continue to think “of themselves as the beneficiaries of a constitution of customary right.” Farah Peterson, Constitutionalism in Unexpected Places, 106 Va. L. Rev. 559, 565 (2020) [hereinafter Peterson, Constitutionalism in Unexpected Places]. ... Close This Article demon­strates that under a constitution thus defined through praxis, violence formed a part of the legal lexicon. It was not just that people at times resorted to violence to get their way; British North Americans belonged to communities that recognized violence as a means of making legal arguments and preserving legal norms. 33 33 These competing traditions are well-represented in the architecture of our Supreme Court building. Text engraved on its architrave proclaims, “Equal Justice Under Law,” while just underneath, the brass doors show King John sealing the Magna Carta following his defeat to the Rebel Barons at Runnymede. Building Features, Sup. Ct. of the U.S., https://www.supremecourt.gov/about/buildingfeatures.aspx [https://perma.cc/KL9D-VC4X] (last visited July 26, 2022); Magna Carta, Nat’l Archives, https://www.archives.gov/
exhibits/featured-documents/magna-carta [https://perma.cc/CC8U-NMGH] (last visited July 26, 2022). Each of these architectural elements, both the textual truism and the pictorial origin story, have become a sort of anodyne pap for the first-year law student. But as constitutional philosophy, these sentiments are in opposition. Equal justice, the system of text- and precedent-based law that gives to each claimant the same principled answer, is not compatible with a system that awards rights to those few who win by force of arms. If these elements both belong on the face of the Supreme Court building, it is because of that tension. Together they help to express a contradiction at the core of our legal culture. ... Close

The Federalists tried to replace this constitution of community con­sensus, of praxis, of action, and of force, with a written constitution. Their accomplishment, the neo-Whig historians taught us (skipping over the Civil War, which was not their period of expertise), was that we would thereafter fight out our controversies at the ballot box or in court. 34 34 See, e.g., Wood, Creation of the American Republic, supra note 10, at 614 (“Americans had in fact institutionalized and legitimized revolution . . . . [N]ew knowledge about the nature of government could be converted into concrete form without resorting to violence.”). ... Close A writ-ten constitution was supposed to confine constitutional claimsmaking to text and institutions. 35 35 See id. at 613–15. ... Close Neo-Whig historians and their students have described the Founding moment as the triumphant establishment by the era’s elite of this ordered system, one so bloodless and rational that we can still discern its outlines and parse its Framers’ intentions by looking at the text they set down. 36 36 See, e.g., id. ... Close But this Article argues that the Federalists were not able to suppress or to fully transform Americans’ constitutionalism of force.

The constitutionalism of force endures. Even as our institutional traditions have grown more dominant over the centuries, it is nonetheless impossible to fully account for the ordering of our society or for the interpretation of the textual Constitution without also understanding that violence has at times fueled the Constitution’s evolution and defined the limits of constitutional amendment by more formal means. The Ku Klux Klan’s campaign of terror defined the scope of the Reconstruction Amendments more than its framers’ intentions did, 37 37 See John Patrick Daly, The War After the War: A New History of Construction 3–4 (2022) (arguing that the “complete triumph of white supremacist military forces in 1877 settled many of the open issues of the legacy of the earlier Civil War,” and “ex-Confederate extremists, with their military action,” also “crippled” each of the Reconstruction Amendments in the South); Steven Hahn, A Nation Under Our Feet: Black Political Struggles in the Rural South From Slavery to the Great Migration 266 (2003) (observing that “[b]etter than anyone,” the freed slaves in the South “understood that the rites of democracy had been built on rituals of violence and suppression directed against them,” and “[j]ust as “[p]aramilitary organization” had been central to slavery, “it remained fundamental to the social and political order of freedom”); id. at 265–313 (discussing the martial efforts Southern Black Americans undertook in order to participate in democracy and the rise of paramilitary organizations like the Klan devoted to suppressing Black participation); see also Eric Foner, The Supreme Court and the History of Reconstruction—and Vice-Versa, 112 Colum. L. Rev. 1585, 1587–90, 1592–93, 1602–03 (2012) (describing how historical writing of Reconstruction, which valorized the Ku Klux Klan, influenced the Supreme Court to limit the scope of the Reconstruction Amendments). See generally Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019). ... Close a scope formalized after the fact in Plessy v. Ferguson. 38 38 In Plessy v. Ferguson, 163 U.S. 537, 544 (1896), the Court held that “[t]he object” of the Fourteenth Amendment “was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality.” But critical issues, including what the “nature of things” consisted in and whether “social” equality was a reasonable goal, were decided outside of the courthouse by paramilitary groups. ... Close

If America has a constitutional order that has endured since the Founding moment, that order is a blend of text and violence. The Founders’ legitimation of violence is not a point of historical interest that has since been “fixed” and safely resolved. Resort to violence to resolve consti­tutional questions has instead been a recurring theme, one that is not as acute in every era but that resurfaces frequently. When it does, it poses a serious threat to the rule of law system and the institutional tradi­tions we have nurtured and strengthened over the course of our history.

We have inherited the Federalists’ failures, and these days we may feel them even more keenly than the Federalists’ many successes. Violent movements have power to change our constitutional order. As a result, we are now in a time as precarious and as open to influence as any of the other key moments in our country’s formation.