John Brown's Constitution

57 Pages Posted: 24 Apr 2009 Last revised: 8 Jun 2010

See all articles by Robert L. Tsai

Robert L. Tsai

American University, Washington College of Law

Date Written: January 28, 2010


It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained committed to basic notions of democratic self-rule. Rather than call Brown simply a terrorist or a common criminal, it is more accurate to understand him as a practitioner of “fringe constitutionalism,” in which a patriot turns to unconventional, even violent tactics, on behalf of deep governing principles. The individual straddles traditional cultural and legal categories, taking advantage of such complexities in the name of constitutional transformation.

Keywords: constitution, radical, popular constitutionalism, slavery, equality, terrorism, citizenship, culture

Suggested Citation

Tsai, Robert L., John Brown's Constitution (January 28, 2010). Boston College Law Review, Vol. 51, 2010; American University, WCL Research Paper No. 09-35. Available at SSRN:

Robert L. Tsai (Contact Author)

American University, Washington College of Law ( email )

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