Popular Sovereignty, Vigilantism and the Constitutional Right of Revolution

Abstract:     
The focus of this article is the interplay of an indigenous American idea – popular sovereignty – and two American traditions: vigilante justice and constitutional conventions during the nineteenth century. While the traditions may seem unconnected, they are linked by the doctrine of popular sovereignty, which was based on the notion that “the people” are the ultimate and only legitimate basis for government and that the “the people” possess the right to reform, alter, or abolish their government at any time. What emerged in the debates over both the proposed California constitution of 1849 and the San Francisco vigilante activities of the 1850s were conflicting views about both the scope and means whereby the people could exercise this sovereignty.

It is a commonplace that the American legal and constitutional order rests on the idea of a government “of laws and not of men.” The phrase implies the primary role that law plays in ordering and maintaining order in American society as well as the close identification of lawyers with that process. It would seem anomalous today to identify members of the legal profession with a vigilante movement that expressly denies the validity of the existing legal system. This reaction is a measure of the distance between our contemporary legal culture and nineteenth-century America. While legal vigilantism seems oxymoronic today, that was not the case in the nineteenth-century assumptions common to lawyers and laymen and involves the evolution of how Americans perceived the doctrine of popular sovereignty.

The American struggle over the role of “the people” in the context of “altering, reforming, or abolishing” government did not come to an end with the mechanism adopted for constitutional change in the Federal constitution or by judicial review. The debate instead shifted to the states and was largely conducted within state constitutional conventions during the nineteenth-century. However, as popular government, majoritarianism, and democracy developed political meaning in the course of the nineteenth-century, a natural connection emerged with vigilantism. Popular sovereignty, rather than being one of a number of rationales for vigilantism, was the principal rationale for extra legal activities. Thus, one of the reasons that nineteenth-century vigilantism found support from lawyers, ironically, stemmed from its linkage with a constitutional tradition accentuating the sovereignty of “the people.”

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