Constitutional Coercion

One theme that I develop in my work about the “generational cycle” in constitutional law is that almost every major transition involves some strong coercion that is applied to those who resist to the bitter end.  A famous case is the postbellum South, which was placed under military occupation and given a choice between remaining a colony or ratifying the Fourteenth Amendment to rejoin the Union.  That is a choice in a certain sense, but it was much more constrained than what we usually think of as consistent with democracy.  Here are some other examples:

1.  Rhode Island refused to ratify the Constitution until 1790.  Did the other twelve states respect Rhode Island’s right to refuse?  No.  Congress threatened to impose an economic blockade on the state and only then did ratification happen.

2.  The Cherokee Nation, backed up by strong language in a Supreme Court opinion, refused to sign a treaty with the United States consenting to their removal from Georgia. Did the United States respect the Tribe’s right to refuse?  No.  Georgia put the Cherokee leadership in jail and convened a rump meeting of the Tribe (at gunpoint) to ratify the Treaty of New Echota.  That “treaty” was then ratified by two-thirds of the Senate.

3.   Although the Populists and William Jennings Bryan lost the 1896 election, they got significant support from African-Americans and poor whites in the South.  Did the Democratic leadership there respect their right to choice?  No.  They enacted a series of suffrage restrictions (mostly upheld by the Supreme Court) to ensure that there would be no repeat of that rebellion.

4.  When the Supreme Court resisted the New Deal, we know that Franklin D. Roosevelt responded with some strong medicine.

Holmes did make the point a long time ago that all law involves coercion to some extent. Where the limits are, though, is a hard question.  Duress is a contractual exception, not a constitutional one.

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2 Responses

  1. Shag from Brookline says:

    I assume you agree that no coercion was involved with the Brown v. Board of Education decision since it was unanimous. But it gave rise to the South’s resistance to it and the 1960s Civil Rights Acts, culminating in the Southern Strategy of Richard Nixon, all efforts at coercion. Should this be included in your work about the generational cycle in constitutional law? There doesn’t seem to be much direct challenge to Brown v. Board of Education any longer.

  2. Gerard Magliocca says:

    Could be. I don’t know enough about about the 1960s to assess that, though at some point I’ll be looking into that more closely.

    Arguably, the way the Voting Rights Act works constitutes an unusual level of supervision (though coercion may be too strong a word).