Constitutional principles shape, and are shaped by, average citizens. American constitutions from the beginning of the republic acknowledged the vital constitutional role of citizens. Article II of the famous Virginia Declaration of Rights declares “all power is vested in, and consequently derived from, the people” ( 2013, 89 ). This passage recognizes that what the Constitution of the United States means is ultimately determined by the people. Citizens interpret the Constitution when they vote, join a political party (or decide to be an independent), protest outside an abortion clinic, or give money to Planned Parenthood. Juries sometimes consider the constitutionality of laws, as well as deliberate upon the facts. Citizens also use constitutional principles to judge the actions or inactions of their government. A long tradition exists in the United States of the people acting “out of doors” on their constitutional understandings. The Boston Tea Party, the actions of lynch mobs, and the civil rights movement all had substantial influence on American constitutional development.
Political movements composed of ordinary citizens powerfully influence the path of constitutional development in the United States. As Jack Balkin and Reva Siegel observe, “Social movements challenge background understandings about the paradigmatic cases, practices, and areas of social life to which principles properly apply; with sustained contestation, constitutional principles become ‘unstuck” ‘ ( 2006, 928–29 ). Evangelicals in the late nineteenth century engaged in campaigns against drinking and gambling that challenged and eventually altered official understandings about the meaning of the contracts and interstate commerce clauses of the Constitution. Stone v. Mississippi, 101 U.S. 814 ( 1879 ), the case that sharply narrowed the commerce clause, was a consequence of popular attacks on lotteries ( Compton 2014 ). The contemporary Tea Party movement helps explain why the Supreme Court has adopted increasingly narrow understandings of federal commerce power.
Constitutional interpretations by leaders of political movements are often as influential as those of elected officials and federal judges. Martin Luther King Jr. arguably had more influence on the course of equal protection doctrine and practice in the United States than the justices who decided Brown v. Board of Education, 347 U.S. 483 ( 1954 ), and the elected officials who passed the Civil Rights Act of 1964. Frederick Douglass, who helped develop and popularize the argument that slavery violated the Constitution, pushed the Republican Party to take more aggressive stances against human bondage. The contemporary evangelical movement secured constitutional amendments in numerous states limiting marriage to a union between one man and one woman. More liberal citizens have formed popular movements that help explain why several of these amendments have been overturned by referenda or in state courts.
Jury service provides ordinary citizens with more controversial opportunities to engage in constitutional interpretation. From the seventeenth century to the present, some juries have engaged in what is called jury nullification, the practice of declaring a person not guilty because the jury does not think the defendant's behavior ought to be a crime. Famous instances of jury nullification include the trials of William Penn ( 1670 ), the Seven Bishops ( 1688 ), and John Peter Zenger ( 1735 ). In all three cases, the defendants had engaged in speech that clearly violated existing legal standards. Nevertheless, acting on the principle that these laws violated constitutional norms, the jury found each defendant not guilty. In 1670, an English judge ruled in Bushell's Case that judges could not punish a jury or overturn a jury verdict, even when evidence suggested that the jury was making a constitutional as opposed to a factual decision.
The precise status of jury nullification is controversial. Many states at the founding required juries to be instructed that they were expected to decide on both facts and law. In Georgia v. Brailsford, 3 U.S. 1 ( 1794 ), Chief Justice John Jay charged the jury that “you have … nevertheless, a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.” Federal courts soon abandoned this practice. In the sedition trial of journalist James Callender ( 1758–1803 ) in 1800, Justice Samuel Chase ( 1741–1811 ) bluntly rejected counsel's attempt to argue before the jury that the Alien and Sedition Acts ( 1798 ) were unconstitutional.
By the mid-nineteenth century, most states were moving toward adopting a similar practice, whereby justices resolved the legal and constitutional issues in cases, and juries were limited to the facts. Commonwealth v. Anthes, 71 Mass (5 Gray) 185 ( 1855 ), was a particularly important decision. In that case, Chief Justice Lemuel Shaw ( 1781–1861 ) of the Supreme Judicial Court of Massachusetts ruled that the state legislature could not constitutionally vest juries with the power to decide laws.
Jury nullification still occurs as an informal practice. In the years before Roe v. Wade, 410 U.S. 113 ( 1973 ), prosecutors in many jurisdictions stopped prosecuting abortionists because juries would not convict. Paul Butler ( 1995 ) has urged persons of color on juries not to convict African Americans of minor crimes. Nevertheless, juries are no longer instructed that they may consider the law and engage in constitutional interpretation when resolving criminal and civil cases.
Ordinary people influence constitutional development by acting “out of doors.” Such actions involve nonlegal, sometimes violent activities that are nevertheless structured by constitutional norms and designed to influence constitutional norms. The Boston Tea Party is perhaps the most famous instance of the people acting out of doors. American colonists believed that Parliament had no right to place a tax on tea. They also feared that any effort to implement the tax on tea would establish a precedent that could later be used to justify the constitutionality of similar taxes. On December 16, 1773, a “mob” organized by Samuel Adams ( 1722–1803 ) engaged in what the colonists believed was a right of constitutional self-defense and dumped all the tea loaded on British ships anchored in Boston Harbor into the ocean. Unlike the modern understanding of riot, in which actions are not restrained by law, the Boston mob understood itself as acting constitutionally and as limited by constitutional norms. Bostonians promptly compensated shipowners for damage done to items that, under the prevailing constitutional theory, were legally in Boston Harbor.
The mob action that destroyed abolitionist James Birney's ( 1792–1857 ) printing press in the 1830s highlights how constitutional norms structured actions taken by the people out of doors. A constitutional controversy broke out in Cincinnati, Ohio, after Birney established an antislavery newspaper in that city. Rather than take the matter to court, Birney and Cincinnati elites engaged in an extended dialogue over whether Birney's antislavery speech was constitutionally protected. Only after that dialogue failed did the mob organize and destroy Birney's press. As was the case with the Boston Tea Party, damage was limited to the constitutionally offensive items. Birney was unharmed ( Elijah Lovejoy [1802–1837], another abolitionist editor, was killed in Alton, Illinois, during a mob attack on his press, but only after Lovejoy initiated gunfire ).
Civil disobedience remains an important means by which citizens act out of doors to influence constitutional development. Most contemporary civil disobedience emphasizes nonviolence. The civil rights protestors who engaged in sit-ins at segregated restaurants violated laws against trespass, but were scrupulous about remaining within the letter of other laws. Most abortion protestors are similarly nonviolent in their efforts to change the official constitutional law of the land. Nevertheless, the violent possibilities of the people acting out of doors remain. Citizens acting on racist constitutional understandings lynched persons of color, and citizens acting on powerful pro-life convictions have murdered doctors who perform abortions. By doing so they highlight how citizen engagement with constitutional issues is both necessary and a threat to a constitutional order.
SEE ALSO Consent ; Constitutional Authority ; Constitutional Interpretation ; Departmentalism ; Governance ; Jury ; Social Movements .
Balkin, Jack M., and Reva B. Siegel. ‘Principles, Practices, and Social Movements.’ University of Pennsylvania Law Review 154, no. 4 (2006): 927–50.
Butler, Paul. ‘Racially Based Jury Nullification: Black Power in the Criminal Justice System.’ Yale Law Journal 105, no. 3 (1995): 677–725.
Compton, John W. The Evangelical Origins of the Living Constitution. Cambridge, MA: Harvard University Press, 2014.
Kramer, Larry D. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press, 2004.
Stimson, Shannon C. The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall. Princeton, NJ: Princeton University Press, 1990.
‘Virginia Declaration of Rights.'In American Constitutionalism, Vol. 2, Rights and Liberties, edited by Howard Gillman, Mark A. Graber, and Keith E. Whittington, 89. New York: Oxford University Press, 2013. Zeisberg, Mariah.'A New Framing? Constitutional Representation at Philadelphia's National Constitutional Center.'Perspectives on Politics 6, no. 3 (2008): 553–68.
Mark A. Graber
University of Maryland Carey School of Law