I plan to return to my typology posts shortly, but I wanted to take a minute to consider a constitutional distinction that I have been discussing with a number of people recently. The distinction is between two types of popular actions within a constitutional order.
The first type, which I have taken to calling "constitutional acts," refers to activities that are recognized by constitutional custom and/or text, or are legitimate within a constitutional system. Taking examples from the US Constitution as a model, we might list a number of popular activities as constitutional acts. Some are actually referred to and protected by the constitution, for example speech acts, particularly those with a political goal, or voting are obvious examples. Some are recognized constitutional practices, or have been declared constitutional by the Supreme Court, for example peaceful protests or flag burning.
"Constitutional acts," as I intend the term, are those activities which press constitutional claims (for changes in policy or for constitutional changes) in a manner that is recognized as within the constitutional system. When people engage in those activities, they are legitimately performing a role they have been assigned by the constitutional system.
The second category, which I am calling "acting constitutionally," is intended to capture the idea that people can act outside the scope of the constitution in a variety of ways and do so in a manner that has constitutional consequences. Often (though not always) these actions may be unconstitutional or illegal, on paper. Again, US history offers us a number of examples of what I am thinking of when I talk about this category: lynch mobs, which deprived African Americans of their rights as citizens (and as people) would be one example of popular forces acting constitutionally--the actions of the lynch mobs deprived individuals and groups of rights and altered the relation between governed and government for large numbers of African Americans. Both consequences had constitutional implications, by any reasonable definition of the term, but neither was constitutionally sanctioned or even legal. So the acts were simultaneously constitutionally consequential and illegitimate.
Anti immigrant mobs, and organized vigilante groups, likewise acted constitutionally, in my formulation, without being constitutional acts. These examples seem to suggest that acting constitutionally involves acting violently, but people can, I think, act constitutionally without engaging in violence. For example, in an article I wrote a number of years ago, I considered the way in which passive resistance to a civil rights law rendered it a nullity. There was no violence, businesses and individuals simply ignored the requirements of the law and the decisions of the courts. The effect was to strip the law of any power and deprive individuals of their civil rights. That was constitutionally consequential, but it was not legitimate or sanctioned by law. It was, in my formulation, an example of acting constitutionally in a nonviolent way.
So the distinction between constitutional acts and acting constitutionally does not lie in the type of action involved, rather it turns on whether the activity or activities engaged in are legitimate or are, at least formally, illegitimate in the constitutional system. Those that are legitimate (or at least not officially barred) are constitutional acts. Those that are formally prohibited but informally permitted fall into the category of acting constitutionally.
The division is not, of course, as clear as that formulation suggests. Some actions shift from one category to another over time, as happened when First Amendment protections evolved over the course of the twentieth century. Other actions hold an ambiguous space, sometimes legitimate, sometimes not. Jury nullification, for example, seems to fall into this middle ground. Some have argued that it is constitutionally permitted, even required (an argument made, for example, by those who sympathized with abolitionists and fugitive slaves in the first half of the nineteenth century), others deny it that status and equate it with lawlessness or even treason.
In the case of jury nullification, its ambiguous status reflects different theories of constitutonal order and the idea of the rule of law. In other instances, context may determine if a particular action is a constitutional act or acting constitutionally. A protest that may begin as a constitutional act may cease to be legitimate if it becomes a violent riot, but even then its participants may be acting constitutionally. So while the categories are distinct, what sorts of activities fall within which category will depend on theory, context and content.