Tuesday, February 2, 2010

Tsai on John Brown's Constitution

JOHN BROWN’S CONSTITUTION by former guest blogger Robert L. Tsai has just been published in the Boston College Law Review. Here's the abstract:
It will surprise many Americans to learn that before John Brown and his men briefly captured Harpers Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These writings, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained committed to basic notions of democratic self rule. Rather than call Brown simply a terrorist or a common criminal, it is more accurate to understand him as a practitioner of “fringe constitutionalism,” in which a patriot turns to unconventional, even violent tactics, on behalf of deep governing principles. Brown straddles traditional cultural and legal categories, taking advantage of such complexities in the name of constitutional transformation.
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