RIGHT OF REVOLUTION (Update)

The original entry in this encyclopedia argues that, although the right of revolution may be a natural right, it cannot be a constitutional right, because it would be illogical for a constitution to sanction a revolt against its own authority. This argument has been common in American history: among others, abraham lincoln (in his First Inaugural Address) and the Supreme Court, in dennis v. united states (1951), both subscribed to it. Yet this argument rests on a quite narrow definition of revolution, as an insurrection against the fundamental legal order entrenched in the Constitution. A different, and perhaps more common, definition of revolution would refer to any armed uprising against a sitting government. So defined, a right of revolution could indeed be a constitutional right. Sitting governments sometimes defend the constitutional order, but sometimes they seek to subvert it. Under the latter circumstances, revolutionary movements may arise to conserve and protect the constitutional order against the assault of a lawless government. A constitution could—with perfect logical consistency—guarantee a right of revolution for such "conservative" movements. These revolutions seek to overthrow, not the Constitution, but a government that itself seeks to overthrow the constitutional order.

Throughout American history, revolutionary movements have sought to portray themselves as "conservative" constitutionalists. Many of the leaders of the American War for Independence maintained that they were merely protecting the ancient British constitution against parliamentary and monarchical innovation. In the late twentieth century, leaders of the modern militia movement claim to be the intellectual heirs of patrick henry and thomas jefferson, protecting the Constitution against a federal government run amok. Whatever their other weaknesses, these claims are not conceptually incoherent: the American constitution could guarantee a right of revolution without logical inconsistency.

Yet although the Constitution could protect such a right, it is a different, and very controversial, question whether it actually does so. The most obvious and popular possible location for a constitutional right of revolution is the second amendment, which provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The meaning of this provision is today intensely contested. One school of thought, the individual rights view, holds that the amendment protects the right of individuals to own private arms so as to, inter alia, resist a tyrannical government. The other main school of thought, the states ' rights view, maintains that the amendment protects the right of the states to arm their militias (currently, the state National Guards) as a check on federal power; for some in this school, this checking function apparently includes the ability to resist federal tyranny by force of arms. The principal disagreement between these two schools, then, concerns who possesses the constitutional right to arms to resist government—individuals or collective organizations under state control.

This commentator takes an intermediate position: The amendment protects the right of the American people as an organic whole to own arms so as to make a revolution against tyrannical government. The possessors of Second Amendment rights thus have both individual and collective aspects: They are neither state militias nor disconnected individuals but individual members of a highly unified, revolutionary people. If such a people does not exist, neither can the right to arms for revolutionary purposes; under such circumstances, armed insurrection would constitute not a revolution but vicious civil war. The drafters of the Second Amendment realized that revolutions work as a check on government only when the citizenry is highly unified and homogeneous. When it is not, revolutions tend to become either authoritarian and oppressive or anarchical and oppressive. Under such circumstances, the normal processes of electoral politics and judicial review are better checks against tyranny; revolutions eliminate one form of tyranny merely to install another. Even under conditions of disunity, individuals may possess a natural right to arms so as to resist oppression, but the drafters of the Second Amendment sought to protect a constitutional right to arms only for a united people. Because the American citizenry may have since ceased to be such a people, the Second Amendment's revolutionary aspects may also have since ceased to have real meaning.

In short, then, there is fairly broad agreement that originally, one purpose of the Second Amendment was to guarantee a right of someone (individuals, militias, a people) to own arms so as to resist some level (state, federal) of government if it should become tyrannous. (This agreement is, however, not unanimous: A very few would read the amendment as an essentially symbolic statement without any substantive impact). Yet that agreement demonstrates only that the Constitution protects a right to own arms, not that the Constitution directly protects a right of revolution. That distinction, although subtle, is meaningful, for the following reason. It would be possible to read the Constitution's approach to the right of revolution in either of two ways. First, the Constitution might guarantee a right to arms for revolution, but might not protect the right of revolution itself, because once the revolution has commenced, the nation has been plunged into a state of nature and so the constitutional order has been suspended. In this view, although the right to arms may be constitutional, the right of revolution is only a natural right. Accordingly, once the revolution begins, it ceases to be governed by constitutional norms but instead must look to some extraconstitutional body of standards for its goals and methods. Even in this view, the Constitution indirectly or implicitly recognizes a right of revolution; it does not, however, supply the source of that right nor limit its goals or methods. Alternatively, the Constitution might protect both a right to arms and a right to revolution. Citizens own arms so that they might make a "conservative" revolution dedicated to preserving the fabric of the existing Constitution. Such revolutionary movements are therefore sharply limited by the Constitution itself: They must seek only to restore the Constitution, not some new system of government, and they must honor the Constitution's norms during the conduct of the revolution itself.

A constitutional revolution and a revolution based on natural right are therefore, conceptually, quite different. In practice, however, it is very difficult to determine which sort of revolution was contemplated by the drafters of the Second Amendment, because the drafters themselves failed to explore the distinction. In all likelihood, the reason for this failure lies in their immediate historical experience. The drafters of the amendment doubtless looked to the American Revolution as their paradigm of a legitimate revolution. The makers of the American Revolution themselves freely mixed constitutional and natural law defenses of resistance to Great Britain. Sometimes, especially early in the resistance, they claimed merely to be protecting the British constitution; at other times, as in the declaration of independence itself, they claimed to be exercising their natural right of revolution to defend their other natural rights. In general, as time went on, the revolutionaries came to rely less on constitutional arguments and more on natural law arguments; over the years, their goals grew from the relatively modest desire of reinstating the ancient constitution as they understood it to completely remodeling their government according to principles of natural justice. Later American resistance movements have generally followed the same path of freely mixing constitutional and natural law defenses of the right of revolution.

In theory, then, the American Constitution could, without logical inconsistency, protect a right of revolution, but in practice, American revolutionaries have not sharply distinguished between constitutional and natural law rights of revolution. It is important to note that this failure to distinguish does not clearly indicate that there is no free-standing constitutional right of revolution (nor does it clearly indicate that there is one); rather, it suggests merely that Americans have tended to draw simultaneously on both the Constitution and natural law in justifying their revolutions. This simultaneous reliance grows naturally from the fact that Americans have often claimed that the primary content of their Constitution is natural law itself. In short, then, American constitutional argumentation has not clearly resolved or even seriously addressed whether the right of revolution is a constitutional right or only a natural right. Instead, American revolutionaries have defended their revolutions as rooted in both natural and constitutional law, and opponents of those revolutions have denounced them as rooted in neither.

David C. Williams
(2000)

Bibliography

Ehrman, Keith A. and Hennigan, Dennis A. 1989 The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately? University of Dayton Law Review 15:5–58.

Levinson, Sanford 1989 The Embarrassing Second Amendment. Yale Law Journal 99:637–659.

Maier, Pauline 1972 From Resistance to Revolution. New York: Random House.

Williams, David C. 1997 The Constitutional Right to "Conservative" Revolution. Harvard Civil Rights-Civil Liberties Law Review 32:415–447.

——1991 Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment. Yale Law Journal 101:551–615.

Wood, Gordon S. 1969 The Creation of the American Republic, 1776–1787. New York: W. W. Norton.