Introduction to my Domestic Constitutional Violence paper

Happy Friday! Below are the first two paragraphs of my latest paper “Domestic Constitutional Violence,” which is now available here via SSRN (the footnotes are below the fold):

“We often associate violence with extra-legal behavior[1] or with the dark side of law enforcement.[2] But violence has also played a pivotal role in our nation’s history and in the development of constitutional law. Simply put, our government has often resorted to acts of “constitutional violence”[3] to effectuate major constitutional change. Consider the stain of slavery. From a practical perspective, it was not the formal enactment of the Thirteenth Amendment that eradicated this peculiar institution. Rather, it was the blood spilled in such costly battles as Bull Run, Chickamauga, and Gettysburg that settled the festering constitutional question of slavery once and for all.[4] The same logic applies to school desegregation and the Little Rock Crisis of 1957. From a practical perspective, it was not the Supreme Court’s landmark decision in Cooper v. Aaron[5] that diffused the crisis or that ended school desegregation. Rather, it was President Dwight D. Eisenhower’s reluctant decision to send paratroopers of the 101st “Screaming Eagles” Airborne Division into Arkansas in 1957, a full year before the Supreme Court’s decision in Cooper, that desegregated the iconic Central High School and changed the course of U.S. civil rights .[6]

“In short, momentous constitutional questions are often decided not through ordinary legal channels but by force. But the use of force to effectuate constitutional change poses a constitutional puzzle. In particular, what is the relation between violence and the overall legal system of government created by the Constitution? After all, the federal courts and the Congress do not have their own armies to enforce their decisions or laws. So, as a matter of constitutional first principles, one could argue that a president is acting “within” the law when he uses military force to enforce a law or court order, but at the same time, isn’t the use of military force totally antithetical to the idea of a republican constitution?[7] If so, is there any viable solution to this logical paradox? Eisenhower’s fateful decision to resort to military force during the Little Rock Crisis thus poses a constitutional paradox.[8] Was his use of force itself lawful, and if so, what are the outer limits to this power?”

[1] See, e.g., F. E. Guerra-Pujol, Buy or Bite?, in Glen Whitman & James Dow, Eds., Economics of the Undead (2014).

[2] See, e.g., Robert Cover, Violence and the Word, 95 Yale L. J. 1601 (1986).

[3] In this paper, I shall use the term “constitutional violence” (or “domestic constitutional violence”) to refer to the use of force to reform or change existing constitutional rules from within an existing legal system, as opposed to the use of violence to create an entirely new constitutional order. For an example of the latter form of foundational violence (as opposed reformational violence), see David Bates, Constitutional Violence, 34 Journal of Law & Society 14 (2007).

[4] See, e.g., James Oakes, Freedom National: The Destruction of Slavery in the United States, 1861-1865 (2014).

[5] 358 U.S. 1 (1958).

[6] A detailed chronology of the events leading up to the Little Rock Crisis and the deployment of federal troops in Arkansas appears in the Supreme Court’s opinion in Cooper v. Aaron, 358 U.S. 1, 7-12 (1958). Additional primary source materials are available in Wilson Record & Jane Cassels Record, Eds., Little Rock USA: Materials for Analysis (1960).

[7] This tension recently re-rose to the surface in October of 2018 when President Donald J. Trump unilaterally deployed over 5,000 active-duty military troops to patrol the U.S.-Mexico border. See Michael D. Shear & Thomas Gibbons-Neff, Thousands of Troops Will Be Sent to Border, The New York Times A18 (30 October 2018).

[8] Since this symposium issue is devoted to the case of Cooper v. Aaron, I will limit the scope of this article to the Little Rock Crisis of 1957.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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