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Radical Constitutionalism and a Critique of Nonviolence


Evan D. Bernick is Assistant Professor at the Northern Illinois University College of Law and co-author of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit.

This post is part of a symposium on Jocelyn Simonson’s Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration. Read the rest of the posts here.


Four years after police killings of Black people catalyzed some of the largest mass uprisings in the history of the United States, not a few liberals would prefer that “criminal justice reform” again be left to the liberal establishment. They toggle between insisting that only a few left elites want to radically transform criminal systems and asserting that radicals are too influential, given that they don’t really know what they’re doing. I’m not naming names because Jocelyn Simonson’s Radical Acts of Justice isn’t about such liberal naysayers. It’s about the people who are proving them wrong, and it’s the most important work of legal scholarship published in some time. I come to praise and problematize. In particular, I want to explore two sets of questions that Simonson’s book raises but leaves underdeveloped. The first concerns the role of the Constitution in freedom struggles; the second, the legitimate role (if any) of violence in transformative left politics in the United States.

It’s to Simonson’s credit that Radical Acts of Justice doesn’t read like it was written by a law professor. There’s no sustained formal argument for legal changes XYZ. This is a book of acts by people with a shared commitment to dismantling the carceral state, documented by someone in solidarity with their struggles. And like one of the livelier books of the New Testament, Simonson’s Acts doesn’t focus on persuading those who think that the status quo is basically OK. You’re either with the people as they strive, suffer, and shape an often hostile world—or you’re not.

I’m in no position to confidently offer strategic advice to people whom Simonson assiduously shows to be thinking through everything that one might question about their tactics. But there’s a debate raging on the left about the utility of the Constitution to transformative political ends, and Simonson’s book intervenes in it—albeit indirectly. She describes a movement that appears willing to lay hold of the Constitution to the extent that will serve the anti-carceral cause. Hence, we have textual references to “the people” in the Bill of Rights (pages 9-10) and selective invocation of Supreme Court doctrine concerning jury trials (79) and speech (62). It’s the language of “the people” that’s particularly important to Simonson because it signifies a systemic commitment to democracy. This language can be used to build democratic power within and against a carceral state that is resolutely antidemocratic.

I was sold before I started reading. I’ve contended elsewhere that constitutional skeptics like Aziz Rana, Ryan Doerfler, Samuel Moyn, and Louis Michael Seidman overstate their Garrisonian case that the Constitution isn’t worth claiming. But there are more concrete ways to connect the Constitution with agonistic democracy than Simonson’s broad invocation of constitutional self-government. Here, I will focus on two: The freedom of speech and the right to confront witnesses. Both of these constitutional inheritances, I want to suggest, were forged and made powerful by emancipatory movements in the past; and both are squarely at issue in popular struggles against state repression today.

Conspiracy Against the Abolition Constitution

Consider the ongoing campaign of government repression targeting the movement to stop the construction of “Cop City.” Atlanta officials are trying to force a $110 million police training complex onto 85 acres of the Weelaunee Forest—land that was forcibly taken from the Muscogee (Creek) Nation in the 1830s. In August 2023, a Fulton County, Georgia, grand jury indicted 61 people on conspiracy charges for their alleged association with the movement. Utilizing Georgia’s expansive RICO statute, the indictment classifies the “broad, decentralized movement” against Cop City as a criminal “enterprise,” thus creating felony liability for anyone who “conspires” to (even “indirectly”) “participate” in it. The “overt acts” alleged in the indictment as furthering this criminal “conspiracy” are overwhelmingly core protected activities—attendance at protests, distribution of flyers, online posts, etc.

This brazen criminalization of political speech is possible because courts have created a zone of constitutional exception around conspiracy law. As Steven Morrison explains, courts adjudicating conspiracy prosecutions allow speech to function simultaneously as (i) actus reus (agreement to join the conspiracy), (ii) evidence of actus reus, (iii) overt act in furtherance of the conspiracy, (iv) evidence of overt act, and (v) evidence of mens rea—in short, speech can both satisfy and prove virtually all elements for conspiracy liability. Despite acknowledging this glaring First Amendment problem in occasional dicta, the Supreme Court has consistently failed/refused to squarely address it.

To appreciate the breadth of this zone of exception, consider the Cop City prosecution alongside another Georgia conspiracy prosecution—that of rapper Young Thug and 27 others associated with the Young Stoner Life (YSL) record label. In that case, prosecutors have rightly received criticism for labelling rap lyrics as overt conspiratorial acts. But the tactic isn’t new. Forms of expression specific to hip-hop are often used as evidence of conspiracy—a phenomenon that Erik Neilson and Andrea Dennis have termed “rap on trial.” What would otherwise be core protected speech is transmogrified into constitutionally unprotected “conduct” by what Donald Tibbs and Shelley Chauncey have shown to be “a fundamental misunderstanding of Black speech.” Rapper Killer Mike, slated to testify on Young Thug’s behalf, has worked tirelessly to bring attention to this issue; his efforts have contributed to the passage of a California bill that limits the circumstances in which creative expression can be introduced at trial. A proposed amendment to the Federal Rules of Evidence would do the same. But these changes to evidentiary rules, I want to suggest, might well be understood as First Amendment enforcement by another means.

Further, the constitutional exception around conspiracy law is not limited to speech: it also applies to confrontation rights. The coconspirator exception enables prosecutors to introduce out-of-court statements made during and in furtherance of an alleged conspiracy (which hasn’t yet been proven) even if the witness doesn’t appear at trial. Crawford v. Washington held that out-of-court statements which are intended to aid prosecution must be excluded if the witness is unavailable, unless there has been a prior opportunity for cross-examination. Any exceptions to this rule of confrontation must be traceable to the Founding. Crawford suggested that the coconspirator exception was among them. This is flatly false; neither in 1791 nor 1868 was there a coconspirator exception. Yet courts have leveraged this sloppy originalism to justify exceptional status for conspiracy law with respect to both evidentiary hearsay rules and constitutional confrontation rights. This exception makes conspiracy a brutally effective tool for compelling cooperation and extracting guilty pleas (a fact celebrated by conspiracy’s defenders).

These are major constitutional problems. But what I want to emphasize here is that the reason they are constitutional problems is precisely because of constitutional change wrought by past emancipatory movements. Many anti-carceral activists understand themselves to be part of a transhistorical struggle against racialized subjugation that began long before the phrase “prison industrial complex” was coined. The crime of conspiracy is part of this history. In the antebellum South, enslaving authorities depended upon surveillance, informants, and physical torture to produce evidence of slave conspiracies. Disregarding common-law prohibitions against torture, police brutalized Black bodies to elicit confessions, true or otherwise, and then executed alleged plotters. To avoid violence to their families and friends, enslaved people informed on acquaintances as well as enemies. To steer clear of suspicion, they avoided social gatherings. Of course, there did exist actual conspiracies against slavery. But the infrastructure of conspiracy law made it possible to arrest, prosecute, punish, and silence in both real and fabricated conspiracies alike.

This is movement history. It also became large-C constitutional history. Abolitionists who claimed the Constitution shaped the constitutional theory of a mass movement—the Republican Party—that smashed federal proslavery hegemony. And Republicans relied upon that constitutional theory in constructing the Thirteenth, Fourteenth, and Fifteenth Amendments, including protections for the freedom of speech and the right to confront witnesses. Speech was central to organizing against what abolitionists and Republicans called the “Slave Power”—a proslavery conspiracy to expand slavery nationally and internationally. So, too, was the right to confront witnesses—and the two rights were related. Both of these rights were used to transform courthouses into agons and build antislavery power.

Consider, for example, Republican resistance to the Fugitive Slave Act of 1850. In a recent paper I recount the factual origins of one of fiction’s most memorable villains: Mr. Haley, a “coarse” slave-trader whose “swaggering air of pretension” has enraged readers of Harriet Beecher Stowe’s Uncle Tom’s Cabin since the book’s publication. The real Haley was John Caphart, a slave-catcher hired by John DeBree of Norfolk, Virginia, to capture Shadrach Minkins—an enslaved man who in 1851 fled from Virginia to Boston. Hundreds of antislavery activists crowded the Boston courthouse where he was held, calling for his release, and about twenty of the activists broke open the doors and forcefully rescued him. The activists were then prosecuted under the Fugitive Slave Act. In the ensuing trial, abolitionist lawyer Richard Henry Dana, representing defendant Robert Morris (the second black lawyer admitted to practice in Massachusetts), had the opportunity to cross-examine Caphart. The cross-examination proved decisive, not only as a means of securing an acquittal for Morris by showing Caphart to be an unreliable witness, but also, more broadly, as a form of democratic address—to the jury, and to the entire political community—concerning the injustice of a law that empowered people like Caphart. Through the speech of Stowe and others, that cross-examination record helped build the antislavery movement.

The Fourteenth Amendment now guarantees speech and confrontation rights against the states, in the form that they were given through decades of abolitionist struggle. If we’re going to wield the Constitution—and I agree with Simonson that we should—the abolition Constitution may prove a more potent weapon than the Court’s.

Violence and the Anti-Carceral Word

I use violent language advisedly. Simonson cites Robert Cover in detailing the carceral state’s physical violence. But Cover wasn’t the first to notice that state legal systems are physically violent, even if he was unusually eloquent. His most original contribution to legal theory was his exposure of the metaphysical violence that the state inflicts on norm-generating communities like those which Simonson spotlights. State legal systems do more than chain, cage, and kill people. By so doing, they aspire to kill competing visions of how the world is and ought to be. To illustrate the connection between physical and metaphysical violence, Cover invoked the binding and gagging of Black Panther co-founder Bobby Seale during the 1968 trial of activists who were originally known as the Conspiracy Eight. Seale is bound so that he cannot describe the world of the Panthers—one of principled revolutionary struggle against a racial capitalist state.

Cover contended that judges in particular are disposed to be jurispathic—to put the state’s weight behind one norm, insisting that only that norm is law. His early writings express optimism that judges could “invite new worlds.” Along these lines, we might imagine that if the movement groups described in Radical Acts of Justice reached a critical level of influence, then their heterodox ideas about “justice” and “safety” might become the dominant ideas animating the legal system; the formal legal system is redeemed by being remade in the image of the movement groups’ normative universes.

But later in his career, Cover doubted the prospects of bloodless transformative change. In an essay published shortly before his untimely death, he concluded:

In law to be an interpreter is to be a force, an actor who creates effects even through or in the face of violence. To stop short of suffering or imposing violence is to give law up to those who are willing to so act. The state is organized to overcome scruple and fear. Its officials will so act. All others are merely petitioners if they will not fight back.

This is chilling stuff, and honestly it’s a bit much. Cover’s judiciary—indeed, the entire state—often appears as a monolithic monster, impenetrable to transformative politics, committed to killing its competitors. There’s no denying the aspiration, but the state’s reach often exceeds its grasp. One need only look to the 574 Native Nations which continue to persist in spite of genocidal violence.

And yet, violent resistance against a violent state is a major part of the history of freedom struggles in the United States. Simonson discusses how anti-carceral activists who attend court proceedings to “observe, learn, share, and organize” (54) have taken inspiration from the Black Panthers. She writes that these courtwatchers are “well aware of the long history and especially the Black radical tradition, of disrupting courtrooms” (82). She claims, however, that genuinely disruptive conduct by Panthers was exceptional, and emphasizes that courtwatchers “contest[] knowledge production in the carceral space through orderly presence rather than vocal outbursts” (83). I take the point about courthouse disruption. Still, there’s a larger tactical issue just out of focus.

The Black Panthers watched cops with shotguns and rifles in their hands. Simonson draws from Elizabeth Hinton, who in her important history of Black rebellions against police violence contends that “[a]ny successes of the nonviolent, direct political action of the civil rights movement depended on the threat of violent, direct political action.” It’s a remarkable claim that is supported with decades’ worth of evidence but defies substantiation here. I want to talk about the 2014 rebellion in Ferguson, Missouri, which illustrates the claim’s relevance.

As Paul Butler has written, the Department of Justice produced two reports about the Ferguson police department after Officer Darren Wilson killed Michael Brown, an unarmed Black teenager. The first report described and condemned a police force that treated Black people as a subject population, arresting and fining them for arbitrary reasons. It found that Ferguson police routinely committed constitutional violations and recommended a number of reforms that were later mandated in a federally supervised consent decree. Among those reforms was a prohibition against pretextual traffic stops, even though the Supreme Court has held that such stops are constitutionally permissible. The second report contended that the killing of Michael Brown was likely justified under Fourth Amendment doctrine governing excessive force.

Butler points out that there’s no logical inconsistency between the two Ferguson reports. It’s conceivable (if extremely unlikely) that Wilson—a member of an organization that routinely violates the Constitution when interacting with Black residents—didn’t do so when using lethal force against an unarmed Black teenager. Still, without the killing of Michael Brown, there are no Ferguson reports at all. Constitutional violations came to light because of what the DOJ concluded was not a constitutional violation. And without the rebellion against police violence by the people of Ferguson—among the most iconic images of which sees Edward Crawford, Jr. throwing a tear-gas canister back at police officers—there are no consent decrees that go above and beyond what the Supreme Court has said is constitutionally required. Law was made because people broke the law in response to what the state called a lawful shooting and physically defended themselves against law enforcement. By refusing, in Cover’s words, to “give law up to those who are willing to so act.”

The legitimate role of violence in transformative social change isn’t easy to talk about. To even raise the possibility of such a role is to invite the sort of repression that devastated the Panthers. Of course, the United States owes its existence to revolutionary violence. But lawmaking violence must not be repeated—or so those committed to the existing order insist as they violently preserve it against would-be revolutionaries. Among Walter Benjamin’s enduring insights about state violence is that states cannot tolerate violence that does not go through the proper channels. The mere existence of the latter is an existential threat: “[L]aw sees violence in the hands of individuals as a danger undermining the legal system.” Violent resistance to violent states may be morally justified. It may also be extremely unwise in the circumstances, given the likely response.

Perhaps the Panthers’ more militant tactics were effective at one juncture but would not be so today. Perhaps that’s what courtwatchers have learned. But Simonson doesn’t say that, and I was left thinking about it in light of the stories that Hinton tells. These are not stories with clear morals or strategic uptakes. What they definitely do not suggest is that violence has no legitimate role in movement lawmaking. Uncomfortable and fraught though the question might be amidst repressive forces that will take any excuse to smear their victims as violent, we must ask: What is that role?

Radical Acts of Justice is radically optimistic about the power of the people to dismantle oppressive systems. Is it too optimistic? I don’t know, and neither do you. I hope that Simonson’s work will engage, educate, inspire and radicalize anyone with eyes to see and ears to hear. It shows us how to create new worlds.