A half-century ago, my late friend Pauline Maier published her first book on the American Revolution: From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776. The title is suitably academic. Yet as the nation prepares to observe its 250th anniversary—in who knows what fashion—one key aspect of her argument has become strangely relevant. It relates to how Maier described the “extra-legal” forms of resistance that American communities could legitimately deploy when they believed institutions of government were acting unjustly or arbitrarily.
That is exactly how the residents and governments of numerous cities have been responding to the militarized crackdowns being conducted by Immigration and Customs Enforcement (ICE) and the Border Patrol. The tragic murders of Renee Nicole Good and Alex Pretti in Minneapolis are the most flagrant symbols of this brutality, but hardly its sole examples. ICE and the Border Patrol are not viewed as legally responsible or politically accountable agencies that serve the communities where they operate. No one welcomes masked, heavily armed, obnoxious individuals patrolling their streets, arresting neighbors, brandishing weapons, and threatening and abusing ordinary Americans observing their actions. All of those who turn out to monitor their activities and alert their neighbors are performing a latter-day version of the extra-legal resistance that Maier described.
In my view, the most authentic way Americans can observe and participate in the 250th anniversary of the nation’s independence would be to understand how Maier’s argument about extra-legal resistance is apt for this depressing moment in our history, and then act on the lessons it offers. But to make this point clear, let me explore the more conventional activities that the semiquincentennial will include.
Last June, I attended a conference on The American Revolution and the Constitution held at the American Enterprise Institute in Washington. It was the seventh of eight conferences that AEI has been holding on the 250th anniversary of independence. Given its conservative orientation, any conference sponsored by AEI would predictably take a celebratory turn, and so did this one. My own paper on “The Invention of American Constitutionalism” fits well within that framework. Like my mentor Bernard Bailyn and his many students, including Gordon Wood and Maier, I have always regarded the constitutional developments of the Revolutionary era as a world-historical event. All the other participants in these conferences likely shared my opinion.
Yet at the conference dinner that followed, I became the grinch who wanted to rob the other happy campers of their semiquincentennial joy. Yuval Levin, our gracious host and convenor, started our post-dessert conversation by asking me, “What do you think the celebration of the 250th anniversary of independence will be like?”
“I think it is going to be a complete disaster,” I replied, and offered a few reasons to support that view. The most important one, directly relevant to our subject, was that the constitutional system is lurching toward collapse and outright failure. That system is in far worse shape today than in 1861, when 11 slave states seceded to form the Confederacy.
How any positive or enthusiastic celebration of the 250th is possible amid these conditions remains a mystery. What exactly are we celebrating beyond a round number that has no significance in itself? The re-election of a twice-impeached president who prompted the storming of the Capitol on January 6 and then happily watched its mayhem on television? The abject abdication by the House of Representatives of its power of the purse to allow the president to levy and revoke tariffs in his irrationally whimsical manner? The Supreme Court’s invention of a doctrine of presidential immunity that protects Donald Trump against any wanton abuse of his authority, even as he seems to be selling presidential pardons that can be repaid in cryptocurrency?
Of course, there are numerous legitimate questions to ask about the Founding era and the relation between the deeds and ambitions of the revolutionary generation and their descendants. Levin made just such an effort in a recent article in The Free Press. “America’s 250th Isn’t Just a Birthday” was its title. Levin meditates on the difference between a birthday and an anniversary, thinks of the nation as a family, and ponders the relations between generations, asks whether descent from earlier generations matters any more than the newly acquired status of the naturalized immigrant, and so on. In some general sense, these are ideas well worth discussing. But they also float in some netherworld detached from our intellectually and emotionally gut-wrenching moment, when institutions akin to concentration camps are emerging across the landscape; when federal agencies are routinely disparaged as an American Gestapo; and when overtly neo-Nazi sentiments have become compatible with Republican ideology.
Then, too, we will have numerous books, articles, and podcasts about that crucial Revolutionary text, the Declaration of Independence, and what Wood calls its “five most famous words,” the “self-evident” truth that “all men are created equal.” Once again, Americans will have to consider how the author of those immortal words was also the wealthy slave-owning master of Monticello, that jewel of eighteenth-century architecture. Jefferson was the most cosmopolitan American of his age, and his desire to build and rebuild his mansion came at the cost of incurring the debts that sent all his slaves to the auction block after his death on July 4, 1826. The only exceptions were Sally Hemings, his late wife Martha’s half-sister, and her children, who were quietly released into freedom.
Questions like these do have a timeless aura, which is why we keep exploring them. Yet this is precisely why they have also become so untimely now. It remains to be seen whether any new answers to these familiar questions about the Declaration will supplant Pauline Maier’s superb study, American Scripture: Making the Declaration of Independence. But again, it is her first book, From Resistance to Revolution, that carries the deepest echoes today.
The key term that Maier used was “extra-legal resistance.” What did it mean? In the colonies as in Britain, communities believed that certain acts of government could be resisted when they threatened the essential rights and interests of the king’s subjects. Various kinds of uprisings, riotous events, and militant protests did occur during the colonial era of our history. From the perspective of imperial officials representing the British crown, these protests were illegal acts to be repressed or punished. Ship captains in the Royal Navy believed they were acting legally when they forcefully impressed sailors for their warships. Merchant seamen, shipyard workers, or ordinary individuals innocently strolling the streets thought otherwise. When anti-impressment riots occurred, they enjoyed the community’s full support.
This tradition was well established before the Stamp Act Crisis of 1765 disrupted imperial politics. Some of the earliest protests against the Stamp Act were indeed too violent. It was one thing to intimidate individuals who thought they had received lucrative appointments as stamp collectors into resigning their commissions. That was the easiest way to halt the enforcement of the Stamp Act. It was another matter entirely to ransack the residences of royal officials, notably including the Boston mansion of Thomas Hutchinson, lieutenant governor and chief justice of Massachusetts. This wanton destruction of private property was blatantly illegal. Nor could such acts ever be justified while the colonists were insisting that they were defending their rights, not defying their royal sovereign.
It was precisely because the initial resistance to the Stamp Act had this violent edge that Maier’s “radicals” acted as they did. Their concept of extra-legal resistance meant they had to pursue the least offensive means first—petition first, then petition again, and escalate tactics only after the government remained impervious to their requests. But escalation, too, had to be a gradual process. When it spun out of control, further steps had to be taken to minimize the damage. That is why John Adams took on the risky assignment of defending the British redcoats who committed the Boston Massacre.
In the past few weeks, Minneapolis has become our Boston, and its citizens have become modern Sons of Liberty. Far more important, they and their counterparts in other communities have unknowingly revived the strategy of resistance that American communities deployed between the Stamp Act Crisis of 1765 and the crisis of independence. Blowing whistles, tailing ICE and Border Patrol vehicles, blaring airhorns outside the hotels where their agents are hopefully spending sleepless nights—these are modern versions of the extra-legal resistance that Maier described. It is altogether fitting and proper that she hailed from St. Paul, the twin city of Minneapolis.
Equally important, these activities express an authentic sense of citizenship that is deeply republican in nature. The more evidence there was that King George III was complicit in the attack on colonial rights, the more it confirmed the belief that all political power must derive originally from the people. When the “long train of abuses and usurpations” that the Declaration of Independence compiled received no redress from the government, the people were free “to alter or to abolish it, and to institute a new Government” to take its place.
That was the real call for revolution in 1776 and what made the events that followed more than a mere war of national liberation. In the coming months, I will give a talk on American Independence: Decision and Declaration at venues ranging from Tempe, Arizona, to Paris, France, to university audiences and to two conferences of federal judges. The talk will address some of those familiar and timeless questions that one always knew the commemoration of our 250th anniversary would address.
Yet in the light of the past year—or even the past decade—the idea that this is a time for uncritical celebration has become a historical absurdity. The real observances are occurring in the streets of every community where citizens mobilize spontaneously against the abusive acts of government, and everywhere else we confront the collapse of our constitutional order.
