“William Wiecek’s assessment of radical constitutionalism is that, “[i]n the short run, [it] was a
failure.””‘ He points out that the radicals became increasingly sectarian, although he attributes a
long-term significance to their use of natural law in constitutional exegesis.” The sectarian
character of radical abolitionist normative thought, however, is of a peculiar sort. Utopian
constitutionalism such as that envisioned by the radicals has as its raison d’etre the
transformation of the conditions of social life. It arises out of the utopian’s inability to bear the
dissonance of the lawfulness of the intolerable, and it is therefore, like all nomic eschatology,
extremely unstable. Its adherent must either give up his connection with what is the case,
including the predictable patterns of behavior of other actors, or give up the vision. The vision of
slavery destroyed by the power of law requires for its fulfillment the participation of the larger
community that exercises state power. The logic of perfectionism permits the pursuit of a pure
nomos without a polis. But for a nomos to be redemptive in the sense posited by Douglass’
vision, more is necessary.
If law reflects a tension between what is and what might be, law can be maintained only as long
as the two are close enough to reveal a line of human endeavor that brings them into temporary
or partial reconciliation. All utopian or eschatological movements that do not withdraw to
insularity risk the failure of the conversion of vision into reality and, thus, the breaking of the
tension. At that point, they may be movements, but they are no longer movements of the law.While their movement lasted, the radical constitutionalists contributed to an immense growth of
law. They worked out a constitutional attack upon slavery from the general structure of the
Constitution; they evolved a literalist attack from the language of the due process clause and
from the jury and grand jury provisions of the fifth and sixth amendments; they studied
interpretive methodologies and self-consciously employed the one most favorable to their ends;
they developed arguments for extending the range of constitutional sources to include at least the
Declaration of Independence. Their pamphlets, arguments, columns, and books constitute an
important part of the legal literature on slavery,” which, I believe, would substantially eclipse
contemporaneous writings in, say, American tort law. Their work reveals a creative pulse that
proliferates principle and precept, commentary and justification, even in the face of a state legal
order less likely to hold slavery unconstitutional than to declare the imminent kingship of Jesus
Christ on Earth.” In the workings of a committed community with common symbols and
discourse, common narratives and interpretations, the law undeniably grew.”Robert Cover, pp. 38-40
Nomos and Radical Constitutionalism
Robert Cover begins his essay, Nomos and Narrative, by defining nomos as “a normative universe,” with community at the center. He explains that “we constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void…No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning” (Cover 4). Within communities, nomos are formed, leading to the generation of a shared set of moral norms which inform how groups both interpret law and strive to change it. By employing legally and historically relevant examples, Cover showcases nomos in action. In the passage I chose, Cover describes the nomos of the radical constitutionalist movement– a 19th-century group seeking to end slavery through Constitutional appeals. The radical constitutionalists, according to Cover, embodied a nomos which found slavery reprehensible under the Constitution, which espouses liberty and justice for all, in contrast with groups such as the Garrisonian abolitionists, who saw the Constitution, in itself, as morally wrong in how it upheld the institution of slavery. The radical constitutionalist nomos required a bold advancement toward an ideal that at once fueled the movement and led to its demise.
Cover situates his analysis of the radical constitutionalist nomos in contrast with another group of abolitionists– the Garrisonians. Garrisonians, led in thought by William Lloyd Garrison and Wendell Phillips, radically rejected the U.S. Constitution, seeing the document as a tool to enforce slavery. Cover quotes Phillips as stating, “my curse be on the Constitution of these United States” (35-36). Conversely, radical constitutionalist Frederick Douglass believed that a Constitution established to protect the rights of Americans could never uphold a “system of rapine and murder like slavery” (38). Radical constitutionalists broke from the Garrisonian nomos by accepting the Constitution as an integral part of American democracy and demanding a shift in American social and legal norms rather than a complete eschewance of the Constitution.
Garrisonians and radical constitutionalists both found slavery to be immoral– the divergence in their views was instead tied to whether the Constitution reinforced or denounced it. Garrisonians shunned the founding document, but having no plan to make substantive change beyond boycott. In the radical constitutionalist’s nomos, rather, the Constitution was a template for a better, more equal version of America. Cover calls this “utopian constitutionalism…,” grounded in the “transformation of the conditions of social life” (39). Radical constitutionalists focused on bringing to reality the Constitutional ideal– upholding freedom, rather than enforcing oppression– through legal change. This would require change in the application of Constitutional frameworks, as well as in social norms, which upheld the institution of slavery in the nineteenth century. Cover describes radical constitutionalism as “nomic eschatology”– bringing an end to a normative world which upheld the oppressive institutions of the slavery to build a new normative world based on freedom and equality (39). Cover argues that movements characterized in this way are “extremely unstable” (39).
The radical constitutionalist nomos is, thus, a weakness and a strength. Cover posits that, as a “non-insular sectarian” group, the radical constitutionalists “risk the failure of the conversion of vision into reality,” breaking the “tension between what is and what might be,” reflected in the law (39). Radical constitutionalists can be both “non-insular” and “sectarian” because intrinsic to their objective as an organization was a vision for the whole of American society embedded in their internal group nomos. Their vision, centered on freedom and equality for all, required the transformation of the normative world of a much broader swath of American society than their small group represented. Movements that break the tension between vision and reality, Cover warns, “are no longer movements of the law” (39). Here, Cover is implying that the “non-insular” aspect of the radical constitutionalist movement is a risk. The radical constitutionalist’s power to build a new normative world, where slavery is unacceptable, became limited when the group was faced with the reality of opposing a widely accepted normative reality of white America, which accepted enslavement. The group’s ability to affect law was deeply hindered by the unwillingness of the majority of white Americans to accept their vision. Despite this, Cover states, the radical constitutionalist movement “contributed to an immense growth of law” (39). They produced a large body of literature, centered on Constitutional arguments against enslavement. These works played an important role in the body of abolitionist legal literature created in the nineteenth century (39). The radical constitutionalist nomos fed their strongly held belief in their work, ultimately leading the growth of law in support of it.
Garrisonian nomos represented an insular advocate community, protected from the instability of brazen, public-facing advocacy. In their eschewal of the Constitution, Garrisonians were limited in the tools available to them to advocate for a realistic path towards the dismantling of the institution of slavery in America. Their “holistic vision of perfection on earth” was seemingly out of touch from the reality of this era of American history (38). Radical constitutionalists saw the fallacy in this view– “Who shall stand up as deliverers,” if the whole of America broke with the union (38)? Rather than buying into the radical Garrisonian nomos, radical constitutionalists produced what may be seen as an even more ambitious goal– to alter the whole of the American legal order, without the “foundation” of law or popularity to support their endeavor (38). Instead, they created a legal foundation themselves, in pamphlets and books, ascribing new meaning to the due process clause, jury provisions, and the fifth and sixth amendments. Their insular nomos demanded the creation of law for a general populace– this contradiction between sectarianism and non-insularity proving to be a fatal conflict for the movement.
Returning to Cover’s definition of nomos, the narrative ingrained in the radical constitutionalist movement perfectly encapsulates a narrative that locates and gives legal institutions meaning (4). In the radical constitutionalist nomos, Cover demonstrates how groups’ nomos– their conception of what is right and what is wrong– fuels initiative internally and hinders acceptance from the broader population. Through narrative, radical constitutionalists produced a movement of law for as long as their vision could withstand the tension against the reality of fraught racial relations in 19th century America. Nomos both fueled the movement and ultimately crushed it, as it became increasingly difficult for radical constitutionalists to realize their ideal for America in the face of a “state legal order less likely to hold slavery unconstitutional than to declare the imminent kingship of Jesus Christ on Earth” (39). Cover’s case study showcases the power nomos holds within communities, dictating action and objective in pursuance of vision– in this case, a just and moral reality.
Bibliography
Cover, Robert M. Foreword: Nomos and Narrative. The Supreme Court, 1982 Term. Harvard Law Review, 1983, pp. 4-68.
