Constituent power and beyond: constitutional transformations

Violence embedded any subsequent rearrangement of the U.S. constitutional system beginning with the territorial enlargement of the federation. The absorption of new territories and their conversion into new States of the Union were only possible through a reinforcement of the Federal authorities' military resources that the constitutional draft had foreseen.

The involvement of violence in American constitutional transformations is self-evident in describing the consequences of the Civil War for the legal system: the nationalization of the protection of individual rights against States' abridgments, the abolition of slavery, the configuration of “equal protection” and “due process of law,” the emergence of safeguards on voting rights against racial discrimination, and the changes in the interaction between Federal Law and States Law (Ackerman, 1993, pp. 82-83; on the interpretative consequences of the Civil War see Monaghan, 1981, p. 356). In short, the strength of the central authority boosted by the Republican nationalism that accompanied the Reconstruction was not a product of the people gathered and deliberating but the corollary of military conflict (Levinson, 2004, pp.

The relationship between the North and the defeated South after the Civil War, as Noah Feldman pointed out (2004-2005, p. 859) resembled those historical scenarios in which a constitutional settlement is imposed by a foreign power, such as the examples that in the twentieth century will be developed in postwar Japan or Germany. Occupied Southern States in the aftermath of the Civil War were refused to be represented in Congress and to be readmitted to the Union until they ratified the 13th and the 14th Amendments to the Federal Constitution (Levinson, 2014, p. 2657). The political will of the Union was, thus, expressed independently of the true will of the “renegade States that had illegitimately made war upon the Union” (Tribe, 1995, pp. 1294). The constitutional transformations experienced in such a context were, thus, clearly a consequence of an act of force and a military occupation. Even the United States Supreme Court in reviewing the validity of some measures passed by the States that seceded from the Union in 1861 admitted that the legitimacy of its decision declaring void such acts of rebellion was a matter of something conquered by force. While in judgements such as Texas v. White [74 U.S. 700 (1869)] such a conclusion remained more or less concealed, in Daniels v. Tearney, for instance, the Court openly declared:

That the ordinance of secession was void is a proposition we need not discuss. The affirmative has been settled by the arbitrament of arms.

[Danielsv. Tearney, 102 U.S. 415 (1880)]

Bruce Ackerman (1998, pp. 21-22) also openly admits that violence was in the grounding of U.S. constitutional amendments during the Reconstruction:

Granted, there is something fishy about the Fourteenth Amendment. But surely Reconstruction was an exceptional time, full of the passions of the Civil War. It was the blood and sacrifice at battles like Gettysburg not the nationalistic model of constitutional change, that legitimated the Civil War amendments.

But Ackerman not only highlights the importance of battlefield victories in exploring what lies behind a successful constitutional transformation. He

Violence and constituent power in America 127 also emphasizes the involvement of a different conception in changing the Constitution. In Ackerman’s approach, unconventional political reform is likely to be coached by political initiatives that succeed in presenting themselves as speaking in the name of the People. The point that rather arises in such analysis is that the unconventional innovation of the constitutional order is a necessary condition to achieve constitutional transformation and that such illegal strug­gle is but the consequence of the violence previously unleashed. The American Reconstruction after the Civil War (and also the American Founding) represented a constitutional transformation since it was sustained by both the battles and the legal breakup. Thus - it is from the legal breakup, backed by violence, that higher lawmaking emerges.

The American Civil War and the Reconstruction Amendments also reveal both (1) the nature of constitutional rules as legal translation of dominant powers and (2) the notion of constitutional transformation regarding the decision on a new allocation of powers. Even though the issue of slavery finally dominated the vision that persisted around the Civil War and the constitutional developments that accompanied it [an idea proclaimed by Lincoln when he recognized that only the constitutional abolition of slavery would give the war an enduring and constitutional meaning (quoted by Richards, 1992-1993, p. 590)] the American conflict had its background in a fight for power among different groups of American citizenry that had been socially, economically, and legally differentiated since the beginning of the Federation. The American Civil War was primarily a consequence of challenging the Union by those in the South who sought to gain more power within another political structure (Buchanan, 1991, p.

In a different sense, the very notion ofthe American People (Weiler, 2003, p. 56; Ackerman, 1997, p. 792) was not obvious in the self-conscience of the American citizens since, precisely, the aftermath of the Civil War and the Reconstruction. In other words, a Civil War was needed to create the idea of a unitary people, sustaining the legitimacy of the Federal Constitution. Before then, the “We the People of the United States” was a more ambiguous notion given the association with the State’s citizenship and the discussion on sovereign attributes of the State. The view according to which the Union was an agreement among the States grounded the interposition and nullification theories concerning the role of the states in determining as a final authority the limits of federal government’s power and their capacity to reject, or nullify, the federal law passed ultra vires (Corwin, 1950, p. 10). Such debates would last until the challenge posed by Southern States’ secession and the victory of the North. As Ackerman (2014,

p. 30) wrote also regarding the transformations of the American constitutional system that followed the Civil War:

Only the bloodbath of the Civil War gave birth to a stronger national identity. In contrast to the Founders, Reconstruction Republicans won the authority to declare, in the Fourteenth Amendment, that national citizenship was primary and state citizenship was secondary. With these words, the Republicans aimed to transform the Federalists’ state-centered federation into a nation-centered federation.

It may be argued that in the case of Ackerman’s third constitutional moment, the struggle between Franklin D. Roosevelt’s Presidency and the Supreme Court during the Great Depression, was the only genuine democratic transformation. But the global background of such developments was anything except calm. The First World War, from which the United States had emerged as a great new industrial power, was not so distant. The America economic and social counter model, the Soviet Union, had precisely stemmed from the ashes of the Great War, and the shadow of the First World War would expand over American society especially once the stock market crashed in 1929, and the illusion of prosperity that had dominated the twenties, vanished. Assuming that, as Eric Hobsbawm classically affirmed (1996, pp. 36-37) the First World War and the Second World War were indeed the same conflict that began in 1914, the American constitutional changes in the 1930s would have been established in the very middle of such an age of extremes. The Great Depression, furthermore, that was the immediate antecedent of Roosevelt’s challenge, was itself tarnished by some violent episodes as well. On March 7, 1932, there took place, for instance, the so-called “Ford Hunger March” in which more than 3,000 unemployed workers demonstrated going from Detroit to Dearborn in an attempt to present some demands to the Ford Motor Company. The march resulted in four workers being shot to death by the Dearborn Police Department and security guards employed by the Ford Company (a fifth worker died some months later) and over 60 workers injured. In late spring and summer of 1932 an assemblage of First World War veterans and their families (known as the Bonus army) gathered in Washington in order to demand cash-payment redemption of their service certificates. The World War Adjusted Compensation Act of 1924 had awarded them bonuses in the form of certificates they could not redeem until 1945. Each service certificate, issued to a qualified veteran soldier, bore a face value equal to the soldier’s promised payment plus compound interest.

Strikes and violent conflicts carried on also during President Roosevelt’s first mandate in spite of his reformist agenda and the new frame of relations between workers and employers. Workers’ protests were answered also by employer campaigns in defence of entrepreneurial freedom. Moreover, the lack of jobs triggered an explosion of racism since the desperate white workers struggled to snatch the low paid jobs previously assigned to the blacks.

And the convulsive consequences of the Great Depression led to another open global conflict. In this sense, it might be suggested that the constitutional changes developed in the New Deal needed the experience of the Second World War to be consolidated. It was not only the democratic expression of “the People” in 1940 supporting Roosevelt for a third presidential term that solidi­fied the Democrats’ new constitutional conception. It was rather what followed from the Pearl Harbour attack in December 1941 that decided the fate of the New Deal measures introduced in the thirties. According to such an interpreta­tion, if in the two previous constitutional moments (the Founding and the Civil War) violence occurred at the beginning of the political events that crystallized in the constitutional regulation (or throughout their evolution) in the third one, the New Deal, the most acute expression of violence appeared at the end of the process in the form of a total war. The Second World War was, thus, a challenge that the New Deal’s constitutional transformations helped to over­come and, at the same time, the context that conferred permanence to changes from which the modern constitutional configuration of America was born.

The next stage of the American constitutional transformations, the Civil Rights Revolution, was also defined by upheavals and horrendous crimes. The opening of the civil rights debate, symbolized by the Supreme Court decision Brown v. Board of Education [347 U.S. 483 (1954)], happened within an atmosphere of violent racism that was corroding American society during that time.

From the issuing of Brown to the passing of the 1968 Fair Housing Act there was a gap of almost 15 years plagued by all sort of attacks, murders, vandalism, and riots, including the assassination of the United States President, John Fitzgerald Kennedy, on November 22, 1963, and the assassination of the leader of the Civil Rights Movement, Martin Luther King, Jr., on April 4, 1968. In such a context of social unrest and fierce confrontations with the background of persistent racial discrimination, it is quite doubtful to state that the constituent moment repre­sented by Brown, and the statutes that followed the Supreme Court’s decision (the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the mentioned 1968 Fair Housing Act) was a transformation grounded in a calmed debate.

Finally, in order to view some recent debates on American possible constitu­tional changes, I refer to the issue of mass murders and the right of the People to keep and bear arms according to the Second Amendment to the Federal Constitution. The fact that such controversy was not explicitly displayed through the formal channels of constitutional change²⁰ did not exclude its constitutional character. After all, the American constitutional changes in the twentieth century relied more on judicial adjudication (or even on judicial appointments) rather than on formal amendments (Jackson, 2015, p. 576).

The right to bear arms was inherited from a period in which the monopolization of the use of the force by the State was not complete, and citizens themselves were called to protect order by their own means. It could be argued even that an inherent social contract in modern societies by which citizens deliver their means of warfare to the State in order to receive the protection of the public authorities was not concluded in all its terms in American constitutional history. It might be thought that the right to bear arms reveals to what extent freedom within a political community requires the means of self-protection that were exercised before said political community was constituted [or, as some authors affirm (Scarry, 1991, p. 1257) that the social contract is precisely ensured by the fact that the population carries guns, the “We the People” would, thus, be inextricably associated with “We, the Armed People”]. Either way, the permanence of the right of the People to keep and bear arms in the core of the U.S. Constitutional system also confirms, in spite of the time that has elapsed from the Foundation, the links between current constitutional developments and the origins of the Constitution. Any constitutional change regarding such an issue, through formal constitutional amendment or through constitutional reinterpretation, and given the problem of social violence surrounding the constitutional debate, would never be free of a background of destruction. A constitutional transformation on the right to bear arms would have required a great deal of victims (homines and mulieres sacri in Agamben’s terminology). The latter would have been not only those fallen as a consequence of the colonizers’ self-protection in the first steps of American history [Hartmann (2019, pp. 6-9) calls this the unholy alliance between genocide and guns] but would also be the children murdered in American schools during the last decades by disturbed people who had been constitutionally authorized to bear weapons designed for mass murder.

The Supreme Court sought to reinterpret the right to bear arms dismissing a Second Amendment challenge regarding a California regulation which provided a ten-day waiting period for new gun purchases. But during Donald Trump’s Presidency, a more profound constitutional debate on that issue was blocked due to President Trump’s firm support of a wide conception of the right in dispute. The Presidential position did not change despite the crimes that occurred during his term of office. Instead of reconsidering the scope of the Second Amendment, the solution proposed by the chief magistrate concerned the militarization of classroom teachers making, consequently, more evident the original link between the right to bear arms and the right of self-defence. Under such a conception, thus, the exercise of legal violence would be shared by the State and the individuals just as happened in the stages that preceded the consolidation of the modern State.