John Brown, Fringe Constitutionalist: The Ideas America Chose to Forget

Robert Tsai on why Brown's constitutional thought was discredited, how it sat between Douglass and Garrison, and why fringe constitutions still shape American politics

Was John Brown a "fringe constitutionalist"? In this conversation, Robert Tsai, Professor of Law and Scholar at Boston University School of Law, explains why Brown's constitutional thought was overlooked, marginalized, and intentionally discredited: partly because he took up arms at Harpers Ferry, and partly because less dangerous mainstream abolitionists were easier to celebrate afterward. He traces Brown's deep respect for earlier legal thinkers, his belief that abolition was compelled by natural law and even the original 1787 Constitution, and where he sat between Frederick Douglass and William Lloyd Garrison. The talk closes on why fringe constitutions, from New Hampshire settlers to French socialists to contemporary white nationalists, still matter for understanding American political tradition.

Video transcript

Louis A. DeCaro Jr.: Let's start with the language. I love this terminology, fringe constitutionalism. Could you address why John Brown is, in your understanding, a fringe constitutionalist?

Robert Tsai: I use that term as one way to describe it. You could use others, like radical constitutionalism. But I wanted a term that could capture an aspect of the American political and legal tradition that has been overlooked, marginalized, and to some degree intentionally discredited. Brown's substantive ideas are rich and have many progenitors, and I think they were discredited for a couple of reasons.

Why Brown’s ideas were discredited (0:46)

One is that he eventually took up arms, not just in places where others already had, like Kansas, but in his planned assault on Harpers Ferry. The question of when someone committed to principles is justified in turning to violence has always been fraught, and it remains so in our political and legal tradition. That is one reason people have tended to overlook him.

The other is that after his ideas were intentionally discredited during his prosecution, conviction, and execution, other mainstream figures who did not resort to violence were able to carry on the fight against slavery. Because that struggle continued, and because those figures were a little less dangerous to celebrate, Frederick Douglass of course, but others as well, that is yet another factor for why people have tended to brush John Brown aside.

A deep respect for earlier thinkers (2:29)

But when you look at his ideas, at his writings before the provisional constitution, and at the provisional constitution itself, I came away with a profound sense that he had a deep respect for the political and legal thinkers who came before him, and for his contemporaries, including abolitionists.

I got the sense that he really wanted to make the ideas of abolition not just persuasive but compelling. He believed that if you thought as hard as he did, and as other abolitionists did, you would see that they were right, as a matter of natural law and even as a matter of the original 1787 Constitution.

Between Douglass and Garrison (3:35)

This is where he and Frederick Douglass, at least the later Frederick Douglass, are closer than Garrison, who believed the original Constitution was a pact with hell and irredeemable. Brown straddles the two. Unlike Douglass, he ends up believing the Constitution has to be changed. It has to be replaced, amended, something has to change in what it says. But he also hasn't given up on constitutionalism. It is a fascinating position that he eventually adopts.

So I think he's been overlooked, and this is the value of looking at him. We get to see a body of ideas that is very much part of our tradition.

To see this aspect of the tradition, and I do this with other aspects in my larger book, I look at some settler constitutions. Some folks broke away from New Hampshire, contemporaneous with the founding generation. I look at French socialists in the mid 19th century Midwest who wrote constitutions. I look at John Brown. And I look at contemporary white nationalists as a way of updating the body of Confederate ideas that, I think, were not defeated for all time at the close of the Civil War, but remain in American culture and, as we've learned more recently, can be revived in certain ways.

So that is the value of paying attention to these figures on the fringes of our tradition.