While thinking in terms of the constitutional lifecycle is one way to organize a a typology of constitutional actions, within each stage of that lifecycle popular forces can engage in a variety of different activities. I’ve already discussed one way to organize those different activities—categorizing them as either constitutional actions (that is, activities that are sanctioned by the constitutional system) or as acting constitutionally (that is, acting in ways that have constitutional implications but are extra-constitutional and probably illegal).
But while useful as way of thinking about the role of a particular activity in a constitutional order, that binary offers only a rough sense of the types of constitutional activities that people have engaged in throughout constitutional history. So this post is intended to provide a basic glimpse of another way of organizing those activities (I discuss these different elements in the context of US constitutional history, in a forthcoming article on popular sovereignty in the antebellum era).
Once again, we can start with two broad categories: non-violent and violent activities.
Within the realm of non-violent, popular constitutional activities, there are a range of possible actions: Some are these may be formally sanctioned by the constitution (constitutional actions, in our formulation): voting or expressing dissent (or concurrence) through the exercise of protected rights like speech or petition or assembly. In some constitutional orders (in the United States at various moments in history), juries in criminal cases claimed the constitutional authority to nullify the law by rendering verdicts that conformed to their own sense of justice, rather than their instructions. Where permitted that claimed power to decide the law could be the popular exercise of a sovereign (and hence constitutional) power.
Obviously, if activities of that sort are not formally recognized or protected by a constitutional order, people who engage in them—by taking to the streets or speaking and acting in the public sphere—may still be engaged in non-violent constitutional actions but they will be acting constitutionally, rather than undertaking constitutional acts. And there are other, non-violent ways in which popular forces may act constitutionally, even if they do so without formal sanction. They may take the law into their own hands outside of the jury box by shaming, shunning, or boycotting to punish those whose conduct they feel is unjust or wrong. Communities may form more organized groups to achieve similar ends, in the late nineteenth and early twentieth century law and order leagues were created in various parts of the US. Although the activities of some of these groups slid into more violent forms of mobbing and lynching, others tried to non-violently enforce laws that they believed the officers of the state ignored or principles that the laws did not reach. Once again, they were claiming the authority to act as sovereigns—to decide what justice required, to judge, and to punish through peaceful sanction.
There are several things to note about these different types of popular, non-violent constitutional action. First, there may not be any connection between the type of action and the goal: a popular protest in the public sphere may have the goal of persuading the government to take a particular course of action, or it may be intended to help bring down a regime and create a new constitutional order. A community may act in a single, extreme instance, to shame a wrong doer, or it may try to declare that it has the power to do so on a sustained basis, as various vigilante organizations throughout US history did.
Second, some of those popular actions are by necessity individual, while others are collective. Voting, although the expression of a fundamental popular constitutional power, is the act of a single person. Some forms of popular protest, like a letter to the editor, are also individual actions, though they may be prepared as part of an organized and collective campaign. Other forms are necessarily collective—shunning is the activity of a collective.
Third, these actions can have different constitutional purposes. They may be intended to persuade or otherwise work within a constitutional system, as was the case with the March on Washington; they may be used with the goal of bringing a constitutional order to an end, as was the case with the more recent protests in Tahrir Square.
Finally, these actions may become violent, either by accident or design. I'll sketch the scope of violence in constitutional history in a later post.