The danger of zombie constitutionalism

If you want a good laugh, you can enter the phrase “sovereign citizens” into your favorite video search engine and find endless hours of delusional people being arrested by the police. Sovereign citizens are a loose collection of individuals who believe they can evade the authority of the police by claiming exemption from the legal code.

There is no central text explaining the sovereign citizen ideology, but one branch holds that America's first governing document, the Articles of Confederation, was never legally dissolved, meaning that those who claim “sovereign citizenship” are not subject to the law as currently enforced under the Constitution. Though it has never stopped a single arrest, devotees of this doctrine will confidently state their case as they resist detainment, treating the legal assertion as magic spell meant to halt a police officer in his tracks. While delusional people attempting to argue their way out of an arrest can create a hilarious spectacle, the phenomenon can also teach an important lesson about placing one’s faith in a document that no longer has the authority to restrict power.

A surprising number of people, even those who consider themselves well informed and patriotic, do not know that the Articles of Confederation served as America’s first governing document. The Articles governed the young American nation from 1777 until 1789, when they were replaced with the Constitution, which most identify as our founding document. This original legal framework created a very weak central government that treated the individual states more like independent nations that happened to work together on certain key issues. The central government found it difficult to raise taxes, settle disputes, negotiate trade, and handle monetary policy under the Articles. After the nation’s leaders had trouble putting down a tax rebellion led by Daniel Shay in 1787, they decided to form a new government that could wield power more effectively.

The Articles were designed to be very difficult to change, requiring unanimous consent from all 13 states. The Constitutional Convention began work to replace the Articles in 1787, but no vote to alter or dissolve the original document was taken. Instead, the new Constitution created its own rules for how it would be ratified, requiring only nine of the 13 states to agree to the document. Technically, the sovereign citizens are correct that the Articles were never legally dissolved, but this has never stopped any of them from going to jail.

The point is not that the sovereign citizen crowd is right. They are very very wrong, but they are wrong in a very interesting way. In a formal sense, the Constitutional Convention’s replacement of the Articles was illegal, but it hardly matters. The Constitution is the key governing document throughout American history. It is the foundation on which the majority of law has been placed, and the values enshrined in its words have become the critical binding narrative of the nation. Most people have no idea about the Articles, but everyone knows about the Constitution. Debating the legitimacy of its ratification hundreds of years later is irrelevant. The Constitution became the functional law of the land and shaped every aspect of America as we know it today. Trying to argue that fact to get out of an arrest will get you nowhere, and people will simply laugh as you are thrown into the back of a police cruiser. The formal letter of the law is less important than how it is enforced and followed. Making arguments based on the technicalities of a document that fell into irrelevance long ago is the act of the desperate or the delusional.

In his book “The Age of Entitlement,” Christopher Caldwell traces the development of civil rights law in the United States. Caldwell asserts that America has developed a secondary informal constitution that runs parallel to the document that formally rules the nation. He believes that the civil rights movement began as a well-intentioned effort by most Americans to deliver on the promise of racial equality in law, answering the legitimate grievances of those who had been treated unjustly. The situation was treated as urgent, and when legislation proved difficult to pass through the normal channels, politicians and activists were willing to use courts, executive orders, and other tools to circumvent the traditional democratic process.

A patchwork of legal decisions slowly merged with dictates from the federal bureaucracy and sweeping legislation to create a byzantine network of rights and regulations generated by new interpretations of previous constitutional amendments. The rapid success of the civil rights movement was unprecedented, and other activist groups sought to use the same strategy to their advantage. The rights of other racial minorities, women, the disabled, and gay and eventually trans individuals all became civil rights, granting them access to the second constitution. The slow, exhausting work of changing public opinion and passing constitutional amendments could be circumvented by placing the concerns of your group into the fast lane.

This development did not go unnoticed by political parties, and a coalition started to form. The only common factor that seemed to bind its wildly diverse constituents together was access to the second constitution. An emergency program that was initially conceived to right the historical wrongs visited on a small and specific percentage of the population was being applied to over half of the country. The majority of the population now had access to the second constitution, creating a new minority of second-class citizens who were relegated to only the rights found in the original governing document.

Read the rest at The Blaze