Constitutional vigilantism of the type on display at Bundy Ranch last week has been a recurrent feature on the margins of American political life. What is new—and dangerous—is that it has suddenly moved from the margins to the mainstream. And it comes with guns.
Last week a mob of more than 1,000 armed protesters forced the Bureau of Land Management to back down from enforcing federal grazing fees. The protesters came out in support of local rancher Cliven Bundy, who’s been letting his cattle graze on federal land in Nevada for more than 20 years without a permit. “We’re standing up for the Constitution,” declared Bundy, to the delight of the television cameras. Bundy and his supporters have a simple constitutional worldview: They do not recognize the federal government’s constitutional authority to manage public lands within a state, and they believe the move against Bundy results from a corrupt political system determined to deprive the people of their rights. But instead of trying to convince a court to adopt their constitutional views or work through the political system, Bundy and his supporters have shown that they can enforce their interpretation of the Constitution by waving guns at federal officials.
On the surface, the dispute at Bundy Ranch focuses on a fairly esoteric constitutional question: whether the Property Clause of Article IV, which grants Congress “power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,” authorizes the federal government to own and manage the public lands within a state. The problem for Bundy and his supporters is that the Supreme Court answered that question in 1897, ruling in Canfield v. United States that the admission of a state does not deprive the federal government of power over public lands. Bundy’s supporters also challenge the federal government’s authority to restrict grazing to protect wildlife, but the court also rejected that argument in 1976, ruling in Kleppe v. New Mexico, that the BLM indeed may regulate grazing on the public lands to protect wild horses and burros. Armed with these and many other legal precedents, the BLM obtained a court order to stop Bundy from letting his cattle graze and ordering him to pay his unpaid bill or face seizure of his cattle.
Who decides what the Constitution means? The Supreme Court is often said to have exclusive authority to interpret the Constitution, but that position has never been universally accepted. President Lincoln, responding to the Supreme Court’s Dred Scott decision in 1857, declared that “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers.”
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.
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.