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Public Law & Legal Theory


The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how much freedom people deserved by how much blood they were willing to shed to obtain it. This constitutionalism of force survived ratification. Its legacy is a constitutional order that legitimizes the violent assertion of rights, especially by groups of armed white men— a legacy that showed itself in the Republican National Committee’s statement that the January 6 Insurrection amounted to “legitimate political discourse.” We must acknowledge this heritage and the pressure it imposes on the rule of law if we are to survive today’s authoritarian challenges to our democracy.



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