Popular Constitutionalism and Political Organization

Abstract

Recent scholarship on popular constitutionalism has two strands. A normative strand urges that the views of ordinary people about constitutional meaning should play at least as large a role in constructing the nation’s constitutional understandings as do the views of elites, and especially the views of Supreme Court justices. A descriptive strand emphasizes the fact that popular views on the Constitution’s meaning have played a large role in the nation’s constitutional development – surging to the forefront at times, receding later, but always present in some form.

This brief Essay contributes to the descriptive strand, and specifically to discussions of how popular views are articulated within the framework of political institutions understood broadly to include social movements and political parties. Without purporting to have done a systematic survey, I have the sense that – perhaps influenced by the modern availability of public opinion polls – critics of popular constitutionalism believe that popular views can somehow be read off “the people’s” expressions, whether in demonstrations, in letters to the editor, or similar alternatives. I believe that criticism misunderstands how politics, even popular politics, works, which is in and through institutions. Consider popular demonstrations, incorporated into Larry Kramer’s analysis as, in the eighteenth century phrase, “the people out-of-doors.” Scholars have shown how popular demonstrations are organized events. So, for example, Jacksonian era riots against abolitionists were organized, as the title of an important study puts it, by “gentlemen of property and standing.” As that phrase suggests, elite involvement in popular expressions is not unknown. The original Boston Tea Party was similarly elite led. Yet, there are examples of truly bottom up organization of popular expression about constitutional matters. A notable example are the free speech fights of the Industrial Workers of the World in the early twentieth century, labor insurgencies of ordinary working people, though with local leaders drawn from the IWW.

Wherever the leadership comes from, though, popular expression on constitutional matters involves organization – be it the organization of mobs or unions or anything else. This Essay deals with the two primary forms of organization – organization within the political system, whether as a faction within an existing party or as a “third” party, and organization outside the party system in social movements or in what we now tend to call “civil society.”