Z Papers on
Vision & Strategy

Global People’s Law
Developing the concept of constitutional insurgency 

By Jeremy Brecher 

printer friendly version

At the height of the 1937 sitdown strike at General Motors in Flint, Michigan, a judge issued an injunction ordering workers to evacuate the plants and end picketing within 24 hours. As thousands of union supporters poured into Flint and the city manager began to organize an “army of our own” to break the strike, union war veterans developed a plan that they kept secret even from union leaders. If the leaders were arrested under the injunction, the veterans “would muster an armed force among their own number and in defense of the U.S. Constitution, of ‘real Patriotism,’ and the union, would take over the city hall, the courthouse and police headquarters, capture and imprison all officials, and release the union men.” A “Union Veterans Song” declared:

What are we to make of this story? The union war vets certainly seemed to be organizing an armed insurrection against the legally constituted authorities. Yet they were doing so in the name of the U.S. Constitution.  

Law and the fundamental law referred to as a constitution evoke two radically different images. One is of a set of rules that express the norms of a community. The other is of an apparatus that allows the use of state power as a vehicle for particular social groups to impose their will on others.  

Over the course of the 1970s and 1980s, radical historians like E.P. Thompson and Staughton Lynd began to articulate a view of law that was very different from either a neutral expression of the popular will or simply a means for the strong to oppress the weak. They portrayed law as an arena of conflicting interests, rather than either an imposition by the state or a pure expression of the will of the community. What laws exist and how they are interpreted and administered at a given time is a result of the historical power relations among different groups. 

Labor law professor James Gray Pope uses such a perspective to help interpret the action of the Flint union war vets, and many similar paradoxical cases, by developing the concept of “constitutional insurgency.” Such an insurgency is a social movement that rejects current constitutional doctrine, but that “rather than repudiating the Constitution altogether, draws on it for inspiration and justification.” It “unabashedly confronts official legal institutions with an outsider perspective that is either absent from or marginalized in official constitutional discourse.” On the basis of its own interpretation of the Constitution, such an insurgency “goes outside the formally recognized channels of representative politics to exercise direct popular power, for example through extralegal assemblies, mass protests, strikes, and boycotts.” It may hold such actions legal, even though the established courts condemn and punish them. 

Pope points out that, “From the American revolution through the Virginia and Kentucky resolutions, the nullification movement, constitutional abolitionism, populism, the civil rights movement, and down to the recent rise of right-wing citizen ‘militias,’ constitutional insurgencies have exerted a pervasive influence on American constitutionalism.” 

The particular constitutional insurgency that Pope examines is the idea—ubiquitous in the American labor movement in the 80 years following the Civil War—that interference with the right to strike meant forced labor, which was tantamount to slavery. Therefore, since the 13th Amendment outlawed slavery, the right to strike was guaranteed by the 13th Amendment. The elaboration of this perspective Pope calls “labor’s constitution of freedom.” 

Courts regularly issued injunctions ordering the cessation of strikes and lawyers allied with the labor movement had no use for the constitutional argument, but it was deeply ingrained in the U.S. working class. Even the often conservative AFL said that a worker confronted with an unconstitutional injunction had an imperative duty to “refuse obedience and to take whatever consequence may ensue.” 

At the end of World War I, as Pope recounts, Kansas miners did exactly that. The governor of Kansas called a special session of the legislature to establish compulsory arbitration by means of a labor court. Soon a test case arose when miners struck over a local grievance. District union officials were ordered to appear before the new labor court and were arrested for contempt when they refused. Miners struck, closing down 90 percent of the mines in Kansas—returning to work only when the officials were released on bond. 

The movement was based explicitly on the idea that such a court was establishing forced labor—slavery. Indeed, hundreds of Kansas women held a meeting (from which men were excluded) and declared that, because their husbands were “striking against a law to enslave our children,” they considered it their duty to stand “shoulder to shoulder” with the men. For the next 3 days, squadrons of up to 2,500 women, many with babies in their arms, blocked strikebreakers from entering Kansas mines. The U.S. Supreme Court eventually declared the Kansas Industrial Court unconstitutional, but in the same decisions sharply limited workers’ right to strike. 

The free speech fights of the IWW, the suffragists, and Margaret Sanger’s fight to speak freely about birth control can also be interpreted as constitutional insurgencies. The constitutional guarantee of freedom of speech justified their actions, even though the legally constituted authorities might throw them in jail for it. 

The civil rights movement, too, can be interpreted as a constitutional insurgency. The movement was contesting for the equal rights that, it held, were guaranteed by the U.S. Constitution, even though they were denied by the legally constituted authorities. 

Constitutional insurgencies do not fit neatly into either the idea of a revolutionary overthrow of the government or of reforms conducted within the constitutional framework as currently interpreted. In practice social movements have long enacted a middle way between the constitutional discontinuity of revolution on the one hand and reform that fails to challenge the legitimacy of dominant constitutional structures on the other. The concept of “constitutional insurgency” explains how this can be. 

The idea of a constitutional insurgency fits well with the practice of non-violent direct action, which is extra-constitutional and yet not aimed at overthrowing the government per se. Indeed, when Gandhi said during the civil disobedience campaign that “sedition has become my religion,” it might have been more apt to say that he had become a constitutional insurgent, fighting for rights that English law guaranteed but that its practice was denying. (As conservative historians are wont to point out, the American Revolution too was a struggle for “the rights of Englishmen.”) 

Of course, there is nothing inherently constructive or democratic about constitutional insurgencies per se. As Pope points out, they have been used not only by abolitionists, but by slavery advocates, not only by the civil rights movement, but by right-wing citizen militias. But they have certain advantages from the point of view of constructive and democratic social movements: 

• They allow proposals for radical change to be rooted in principles that are widely accepted as embodied in at least part of the established constitution, even if they are denied in dominant interpretations. The U.S. Constitution’s basic guarantee of equal rights, as embedded, for example, in the 14th Amendment, was appealed to by the civil rights movement even during the long decades when courts declared “separate but equal” facilities to be legal. 
• They allow a movement to escape the apparent dilemma of either limiting goals to what is currently constitutionally permissible or having to envision overthrowing the government and the entire social order that supports it. 
• They endorse a constitutionalism that, while legitimating apparently illegal direct action, also puts constitutional limits on what it is legitimate for the movement itself to do. Establishing a dictatorship in order to bring about equal rights, for example, would be countermanded by such an approach. Such constitutional limits can help reduce fears of the population, limit the danger of direct action turning into civil war, and help protect the movement itself from turning into a vehicle for tyranny or totalitarianism. 

Is the concept of such a constitutional insurgency applicable in the global arena? An obvious problem is that there is no document called a global Constitution. But Constitutions need not be written documents—indeed, most Constitutions historically have been unwritten. They nonetheless perform the constitutional function of defining the process by which law is made and implemented. If we recognize the existence of international law, there must be at least an implicit global constitution. 

Elements of the global constitutional order include the principles of national sovereignty growing out of the Westphalian tradition; the right of peoples to self-determination articulated in the Versailles treaty; the United Nations Charter and the obligations of member states under it; other international institutions, generally established by treaties but developing a law of their own under them; so-called inherent rights like the right to self-defense; human rights; and individual obligations, for example to resist war crimes. 

Like national laws and constitutions, the global constitution rests on contested interpretations of what the constitution means. There are currently two dominant global constitutional visions. One is based on nation-state sovereignty. The other is based on freedom for global capital. 

But a third vision also exists and is expressed in many popular struggles, even though it is not generally recognized in established institutions. It is based on human rights and democracy as the core of the global constitution.  

These principles include the obligations of states under the United Nations Charter, including the outlawing of aggressive war and the protection of the human rights of their people; the guarantees of the Universal Declaration of Human Rights, including the so-called social rights; the decisions of the War Crimes Tribunals that followed World War II, including the obligation of individuals and those in positions of authority to resist war crimes; the Geneva Conventions and the agreement establishing the International Criminal Court; and a wide range of other international agreements and documents. 

Utilizing International Law 

There is so far no concerted global constitutional insurgency, but there are many cases where social movements have used the principles of international law to legitimate their action—and to de-legitimate assertions of national and international law that conflicted with them. 

A pioneering example of such a constitutional insurgency based on international law was the movement that transformed the communist regimes in Eastern Europe in the late 1980s. The governments of Czechoslovakia, Poland, and other Eastern European countries had signed the Civil and Political Rights Covenant, the Convention No. 87 of the International Labor Organization on the freedom of association, the Convention No. 98 on the rights of workers to organize and to negotiate, and the Helsinki Act guaranteeing human rights in Europe. Eastern European human rights, peace, and labor activists utilized this to argue for the constitutional legitimacy of their actions, notwithstanding their repression by the established authorities. As Jonathan Schell put it in the “Forward” to Adam Michnik’s Letters from Prison, these agreements meant that the actions of Michnik and his associates were perfectly legal, “while the means used by the police and judiciary apparatus in Poland” were “in flagrant violation of international agreements.”

Likewise the struggle against apartheid drew heavily on international law to justify its action, including armed struggle. The statements of the African National Congress and its supporters worldwide regularly drew on racism as a violation of internationally guaranteed human rights. 

Today the struggles of the Palestinian people are systematically defended in terms of international law and the violation of international law by the Israeli occupation. These include human rights violations, war crimes, and violation of UN resolutions regarding Palestinian national rights. 

The rights defined by the UN’s International Labor Organization—making explicit those in the Universal Declaration of Human Rights—form the basis for many campaigns for labor rights around the world. When workers are prevented from organizing, bargaining, and striking— from Bogotá to Beijing and from Phnom Pen to Nairobi— the violation of their internationally-recognized labor rights is almost always an issue. Even the U.S. labor movement has begun to draw on international labor rights in its struggles for the right to organize. 

Basic “constitutional” principles of international law are now being drawn on to challenge the theft of the global commons. For example, an activist in the Cochabamba water struggles recently wrote, “The establishment of the human right to water is part of a half century-long noble effort by the nations of the world to establish human rights as a matter of international law. In instruments and treaties such as the Universal Declaration of Human Rights, the International Covenant on Economic Social and Cultural Rights, the Convention on the Rights of the Child, and others, nations have agreed that our basic human dignities include not only civil and political protections but also economic, social and cultural rights as well.” 

There is now a burgeoning movement to apply the international law of war crimes to the U.S. war on Iraq. More than 20 independent international tribunals held in countries around the world, the most recent in Istanbul, Turkey, have examined the criminality of the Iraq war. As international lawyer Richard Falk put it, these tribunals represent the struggle of “global civil society” to “extend the reach of criminal accountability to include those leaders acting on behalf of dominant states.” In the opening speech of the Istanbul tribunal, Falk observed that, “When governments and the UN are silent, and fail to protect victims of aggression, tribunals of concerned citizens possess a law-making authority.” 

Within the U.S., an alliance of peace, human rights, religious, and other civil society groups has developed in response to the Bush administration’s contempt for both international law and the U.S. Constitution. They are taking action in U.S. courts: for example, persuading the Supreme Court to reject the Bush administration’s claim that the president as military commander-in-chief is above the law and can hold prisoners in Guantanamo and elsewhere without restraint by Congress or the courts. They are taking action in the political arena, for example, demanding appointment of an independent commission to investigate torture and other possible war crimes. 

In this movement against war crimes, U.S. and transborder actions are intertwined. The U.S.-based Center for Constitutional Rights brought suit in a German court against U.S. Secretary of Defense Donald Rumsfeld on the basis of the doctrine of universal jurisdiction, which allows the courts of any country to hear war crimes charges. A recent U.S. law, the War Crimes Act, incorporates the Geneva Conventions into domestic law, making it a serious crime for any citizen—including the president of the United States—to violate them. So the U.S. campaign aims to hold the Bush administration accountable for violations of both national and international law. The tribunal movement plans to utilize boycotts and other means of international pressure to affect the U.S. Civil society, state, and interstate spheres are also intertwined in this effort. The International Tribunal on Iraq plans to report its findings to the International Criminal Court. 

In the U.S., the anti-war crimes initiative is primarily a movement in civil society, but it is using the courts and the political system to impose accountability on political leaders. Of course, the Bush administration currently controls much of the political and legal apparatus responsible for investigating and prosecuting crimes. So holding it accountable is likely to require a collaboration of U.S. and global popular forces, and ultimately a mobilization of people power to enforce national and international law against an out-of-control criminal conspiracy. 

There are many other examples of social movements justifying their claims through international law. The struggle against third world debt has drawn significantly on international law, specifically the principle that peoples are not responsible for “odious debts” contracted by their rulers; unofficial tribunals have been held in many parts of the world to articulate those claims. The international women’s movement has challenged national laws and policies on the basis of international human rights principles, and have forced international legal institutions to revise their rules to recognize women’s rights as basic human rights. The international struggle against nuclear weapons has drawn on World Court decisions questioning the legality of preparations for nuclear war. 

We tend to think of the U.S. Constitution as a founding national document. But it actually expressed a movement and a set of principles that were diffused throughout the Atlantic region. The constituting of governments on the basis of human rights, democracy, and the consent of the governed was a transnational process. 

Similarly the development of rights has been a transnational phenomenon, even when such rights have been incorporated in national constitutions. Abolitionism was an international movement that was ultimately incorporated in the 13th Amendment to the U.S. Constitution. Labor rights campaigns, like the demand for limits on working hours, were international movements that ultimately overturned core interpretations of the U.S. Constitution prohibiting government regulation of the hours and conditions of labor. Abolitionism and labor rights represented global constitutional visions of basic human rights implemented by global constitutional insurgencies. Such global constitutional insurgencies differ from both traditional socialist and traditional anarchist conceptions of social change, whether revolutionary or reformist. But it corresponds in many ways to the actual practice of the movement of “globalization from below” that has emerged worldwide over the past few years. 

Wherever people attempt to challenge existing conditions on the basis of international human rights and the right of peoples to self-determination, they are in effect expressing an alternative global constitutional vision and engaging in a constitutional insurgency aiming to implement that vision. Protesters often engage in civil disobedience that may be illegal under national law but that they claim is justified under the principles that underlie international law—principles that form, in effect, a global constitution. They are increasingly appealed to by activists all over the world. 

The idea of a global constitutional insurgency describes this practice and relates it to a more integrated and fundamental restructuring of the world order. It envisions that transformation as the embodiment of an alternative vision of the global constitution. It sees adjudication and enforcement as occurring through official institutions where possible and through people’s movements and tribunals where official institutions fail to do their job.  

Of course, “actually existing international law” as interpreted by the present “powers and principalities” does far more to deny than to affirm these principles. But that is exactly why existing arrangements need to be challenged by a constitutional insurgency. 

Law making power may seem to reside in sovereign states. But under current international law the sovereignty of states is dependent on, and limited by, their responsibility to represent their peoples and meet their obligations to human rights, the UN Charter, and other aspects of international law. In reality, the institutions for making, interpreting, and enforcing the global constitution are contaminated by corruption, usurpation, and bias. In practice, they are largely shaped by undemocratic national governments, unelected elites, and uncontrolled corporations. The case is strong that at present all nations  are illegitimate outlaw states. It is this which provides the justification for ordinary persons to develop an alternative constitutional vision and attempt to implement it through a global constitutional insurgency. Given the corruption, usurpation, and bias of the established means for interpreting and enforcing global constitutional law, it is the obligation of the people of the world to correct the failures of interpretation and implementation of the global constitution. Given such an obligation, there must also be a right to take the action necessary to fulfill the obligation. Institutional structures, practices, and purported laws that block or punish such action are inherently illegitimate and unconstitutional and therefore void. They represent nothing but illegitimate force and lawless violence. 

Such a global constitutional insurgency can also be described in terms of a people’s concept of world law. Such a view sees law as something that must be imposed on nation states, corporations, and other powerful actors by the cumulative pressure of individuals and groups.