Jared Goldstein writes at Slate about the popular constitutionalist standoffs during the Bundy-ranch standoff which, at heart, was based on a misguided reading of the Constitution. What is the connection between popular constitutionalism and Bundy? It is enforced through force–guns.
Over the last decade, some liberal law professors, led by Stanford’s Larry Kramer and Harvard’s Mark Tushnet, have challenged the notion of judicial supremacy. In its place they advance a theory known as “popular constitutionalism,” in which “We the People,” not the courts, should be understood as the final arbiters of constitutional meaning. Critics of this theory ask how it could be put into practice, and what mechanisms the American people may use to interpret and enforce their Constitution. And along come the protesters at Bundy Ranch to offer the obvious answer. Through force. The protesters are popular constitutionalists with guns, seeking to advance their constitutional interpretations by threatening to shoot any BLM agents attempting to enforce the law as interpreted by the courts.
Goldstein compares these popular constitutionalists with other violent group, such as the KKK:
The Bundy Ranch protest certainly fits within a long constitutional history in which radical groups have sought to effectuate their dissident views of the Constitution through violence. The Ku Klux Klan is the prototypical constitutional vigilante group. Operating outside formal legal structures, the Klan always asserted it was acting to restore the true meaning of the Constitution, which, in the words of a 1925 Klan publication, “put into written form the immortal principles of liberty, popular government, and equal justice, which were the fruitage of Anglo-Saxon character.” The Klan understood itself to be the vigilant protector of white Protestant values embodied in the Constitution, when local law enforcement was unwilling to step up.
Or the Posse Comitatus movement:
The distinctive feature of the Posse movement was the call for armed groups of citizens to take the Constitution into their own hands and enforce it through force. Murder and violence were the inevitable result. Posse groups kidnapped federal officials, put them on trial through the Posse’s own “common law” courts, and imposed brutal punishments. In 1983 former Posse member Gordon Kahl shot and killed two U.S. marshals and injured two others attempting to serve him papers for tax evasion.
By the early 1990s, the Posse Comitatus movement had largely faded away in response to strong state and federal law enforcement, but the militia movement soon replaced it and offered a similar philosophy. Like the Posse movement, militia leaders argued that the nation must return to the true (in their view) meaning of the Constitution. Like the Posse movement, militia leaders pointed to a series of perceived federal abuses—gun restrictions, income taxes, the Federal Reserve, and public lands regulation—and called for the formation of armed citizen groups to restore the true meaning of the Constitution through armed resistance. The militia movement justified the threatened use of force by asserting the “insurrectionary theory” of the Second Amendment, which claims that the amendment enshrines the right to bear arms to empower the people to protect themselves against government tyranny, should it ever arise. Militia leaders declared that tyranny was here and the time for armed resistance had come.
Which he then ties to the Tea Party:
The militia movement, like the Posse movement before it, has largely faded from view, but the philosophy of armed resistance now finds a welcoming home in the Tea Party movement. Militia members form a significant constituency within the Tea Party. For instance, Oath Keepers claims to have enlisted 30,000 military and law enforcement personnel who have taken an oath to disobey a list of orders deemed unconstitutional. Oath Keepers members were out in force at Bundy Ranch. So were members of Richard Mack’s Constitutional Sheriffs and Peace Officers Association, an organization that advocates the old Posse philosophy that the county sheriff has a duty to repel federal officials whenever they encroach on county territory. Mack has said that he “prayed for the day that a sheriff in this country will arrest an IRS agent” for enforcing tax law. Cliven Bundy himself echoed the Posse in demanding that the local sheriff disarm the BLM and called on the protesters to rise up when the sheriff failed to do so.
Goldstein closes by calling them “constitutional vigilantes.”
Emboldened by their apparent victory at Bundy Ranch, the new constitutional vigilantes are asking where they can take the fight next. Cliven Bundy declared it a victory for “We the People.” But that can only be true if we want the Constitution to mean whatever an armed mob says it means.