The American Constitution and the Left

Erin Hagood, Daniel Lazare, and Caleb Maupin

Platypus Review 180 | October 2025

On May 2, 2023, the Platypus Affiliated Society hosted a panel on the American Constitution and the Left at New York University. The panelists were Erin Hagood (Platypus), Daniel Lazare (writer at the Weekly Worker,¹ author of The Frozen Republic: How the Constitution is Paralysing Democracy), and Caleb Maupin (Center for Political Innovation). The panel was moderated by Platypus member Oliver Chasan. An edited transcript follows.²

Opening remarks

Daniel Lazare: In 1996 I published a book called The Frozen Republic: How the Constitution is Paralysing Democracy. It tried to grapple with the Constitution as a whole, not any specific clause or amendment but the logic of the entire document. I argue that the Constitution is a disaster in the making because it is the sole source of political authority in the United States. Everything in our life is determined by the Constitution, directly or indirectly.

The problem with the Constitution is that it’s logically incoherent. It opens with a preamble that advances a sweeping definition of popular sovereignty in which “we the people” can ordain new constitutions as we see fit in order to improve our society and, implicitly, “we the people” can toss out old constitutions as well, out of the same drive or desire. But the rest of the document is essentially at war with popular sovereignty. It tries to constrain it, limit it, and nip it in the bud. The best example is Article 5 — the amendment clause. To pass a new amendment you must have the approval of two thirds of each house plus three fourths of the states. Which means that 13 states can veto any structural change whatsoever. 13 states can be as little as 4.4% of the U.S. population. The US has an 18^th-century Constitution which is more and more constrictive as time goes on and therefore the society grows more and more conservative. The U.S. finds itself in the same boat as the Russian or Chinese Empire, two vast structures that grew rigid as the centuries wore on until finally they completely collapsed.

What passes for politics in Washington is a complete joke. Checks and balances have totally broken down. There is warfare on Capitol Hill and on the government by character assassination. There is no policy-making to speak of. In the U.S., since I wrote my book in 96, we’ve seen the impeachment of Bill Clinton, the stolen election in December 2000, 9/11, and the invasions of Afghanistan and Iraq, which were carried out by tiny cabals in the White House with no public oversight or debate. Then we saw another stolen election, because the electoral college was able to override the popular vote in 2016, and an attempted coup d’ėtat in 2021. Since then we’ve seen nothing but endless warfare. We live in a minority dictatorship with a Senate, which, for example, gives the same vote to Wyoming that it does to California, even though the population differential between the two is nearly 70-to-1. The Electoral College leans heavily on white, rural states. The Supreme Court, which is chosen by a President chosen by the Electoral College jointly with the Senate, is now dominated by a 6–3 ultra-conservative majority which is unbreakable for at least a decade. We’re in the grips of a Right-wing-majority dictatorship.

Within the existing political or constitutional structure absolutely nothing can be done and anybody who tells you otherwise is lying. America is heading for a rupture and there are only two possibilities: either America slides into a long-term sclerosis where all the institutions harden, become less responsive, more corrupt, and more controlled by an oligarchy. Or the Constitution is overthrown, and America enters into a no man’s land where it has to reconstitute itself and re-create a new structure ex nihilo, just as the founders did in 1787. That act of reconstitution will not take place under the aegis of the Constitution but will take place under its own authority under the principle of popular sovereignty — the principle enunciated in the Declaration of Independence, which says that people have the right to create new governments when they see fit: when their self-interest or political interest dictates that option.

Caleb Maupin: If I were to get up in front of this group in the 1930s and talk about defending the Constitution in that context I would be aligning myself with the American Liberty League, the German American Bund, and other groups that considered Franklin Delano Roosevelt a brutal dictator. I would be arguing that Roosevelt was a communist who was threatening our constitutional freedoms and I would be aligning myself with the fascists against the communists. However, in the early 1950s, if I were to defend the Constitution, I would be opposing McCarthyism and supporting freedom of speech. I would be opposing the far-Right wing that was trying to outlaw the Communist Party. Let’s not forget that Communists started the American Civil Liberties Union (ACLU). Let’s not forget that in the 50s and 60s the Left tried to expand constitutional liberties and freedoms. During the Bush years, the Left defended constitutional freedoms. I would argue that it is correct now to defend the Constitution.

Why is defense of the Constitution necessary now? The Uhuru movement, a group of black Marxist socialists, have just been indicted by the federal government. They’re facing 10 years in prison on grounds that they’ve “spread Russian propaganda.” Congress is currently discussing the Restrict Act which would enable the executive branch of the U.S. government to violate an individual’s civil liberties by declaring him a foreign asset or a foreign agent. Julian Assange is rotting away in a British prison facing extradition to the U.S. to be prosecuted under the Espionage Act. The social media outlet formerly known as Twitter was coordinating with U.S. security agencies, the FBI, and others to silence certain political perspectives. Members of Congress have threatened to jail journalist Matt Taibbi for testifying about this fact.

There is a movement in this country that uses McCarthyism to defend Joe Biden, Kamala Harris, and the current administration. It mirrors the Bush administration during the aftermath of 9/11 and the War on Terror. It argues that certain people are so bad that constitutional liberties and the Constitution itself need to be put on hold so that they can be silenced. The 1619 Project goes as far as to argue that the entire cause of the American Revolution was racism and slavery, and so nullification of the Constitution is justified. January 6 is also being used to justify the destruction of constitutional liberties.

As part of the Center for Political Innovation, I sponsored the Rage Against the War Machine protests that happened in Washington, DC this February. At those demonstrations Jimmy Dore, the Libertarian Party, the Mises Party, Tulsi Gabbard, and former Fox News hosts protested the police state at home and the coming world war against China and Russia abroad.

I would argue that in our time we’re seeing a long-term crisis of overproduction. As Marx observed when writing about France in 1851, when you have a long-term capitalist crisis a liberal capitalist society will collapse into some form of illiberalism; this is called Bonapartism. It’s the result of a capitalist crisis and an attempt to manage the crisis and stabilize capitalism. There is a Bonapartist move by some of the richest forces in the U.S., who argue that to reset the capitalist economy we need to dramatically reduce consumption and crush oppositional countries like Russia, China, Venezuela, and Iran. The lower levels of capital, however, resist these forces for their own selfish reasons. This creates the possibility of a new popular front to be formed against degrowth, the low-wage police state, and the danger of World War III.

We should defend the Constitution so that we can change it. I would like to see the “economic bill of rights” that Roosevelt spoke about. Eventually there should probably be a new constitution. It is necessary now for us to defend the U.S. Constitution the same way Lenin called for defending the British Labour Party: “in the same way a rope supports a hanged man.”

Erin Hagood: The Constitution is an objectification of the Revolution itself. The ongoing crisis of the bourgeois revolution is a crisis of the Constitution.

The American Revolution was organized in the complex public sphere created by the emerging bourgeois society. American opposition to the Stamp Act, which put a special tax on printed material, and the organization of the Revolution through “Committees of Correspondence” are indicative of this. From freedom of speech to the right to bear arms to the prohibition on quartering soldiers, the Bill of Rights is suffused with the experience of the American Revolution itself.

But it is not just the Bill of Rights! Although the Left in the 20^th century has often bemoaned the separation of powers in the Constitution as the Constitution of the “slaveholders and aristocrats” (see Earl Browder), we can find the origin of the three branches of government and separation of powers in the experience of the American Revolution. The Virginia Constitution of 1776, adopted alongside the Declaration of Independence, declared dissolution of ties with Britain and denounced the “detestable and insupportable tyranny” of King George III. Checks and balances, far from being a tool against the people, were envisioned as a safeguard for the people, so that the government could not violate the freedom of society.

The first test of this nation conceived in liberty was the expansion of the Revolution to Europe during the Great French Revolution of 1789. As in Britain, support for the Revolution was suppressed in the U.S. The Alien and Sedition Acts attempted to roll back the First Amendment. They represented a break with the course of the Revolution which was restored by Jefferson’s Revolution of 1800. His restoration of the Constitution (not to mention his monetary support of Napoleon) bolstered the tide of the bourgeois revolution.

Beginning with the Civil War, the next event of world historical importance to emerge from the New Continent, the crisis of the Constitution would coincide with the crisis of capitalism. On the occasion of Lincoln’s reelection, Marx wrote to the embattled President:

When an oligarchy of 300,000 slaveholders dared to inscribe, for the first time in the annals of the world, “slavery” on the banner of Armed Revolt, when on the very spots where hardly a century ago the idea of one great Democratic Republic had first sprung up, whence the first Declaration of the Rights of Man was issued, and the first impulse given to the European revolution of the eighteenth century; when on those very spots counterrevolution, with systematic thoroughness, gloried in rescinding “the ideas entertained at the time of the formation of the old constitution”, and maintained slavery to be “a beneficent institution”, indeed, the old solution of the great problem of “the relation of capital to labor”, and cynically proclaimed property in man “the cornerstone of the new edifice” — then the working classes of Europe understood at once, even before the fanatic partisanship of the upper classes for the Confederate gentry had given its dismal warning, that the slaveholders’ rebellion was to sound the tocsin for a general holy crusade of property against labor, and that for the men of labor, with their hopes for the future, even their past conquests were at stake in that tremendous conflict on the other side of the Atlantic.³

Marx saw that the Confederacy, in its opposition to the Constitution and the Revolution of 1776, represented a conservative solution to the crisis of society — a repetition and intensification of the problems posed by the 1848 Revolution and the coup of Louis Bonaparte.

In 1891, Woodrow Wilson wrote that “the functions of government are in a very real sense independent of legislation, and even constitutions.”⁴ He complained in 1913 as President, “The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of ‘checks and balances.’ The trouble with the theory is that government is not a machine, but a living thing. No living thing can have its organs offset against each other, as checks, and live.”⁵ The Constitution was, for Wilson, as later for FDR, an obstacle to progressive capitalism, and therefore an obstacle to his solution to WWI and the international revolutionary crisis it occasioned. The language of “insurrection” inherited from the Civil War was seized upon by progressivism not, as in the 1860s, to suppress counterrevolution, but to suppress demands for socialism and criticism of the war. Famously, it was used to imprison Eugene Debs for his criticism of the war and his support of the Bolsheviks.

This suppression of speech made its way to the Supreme Court, which wrung its hands trying to reinterpret the First Amendment to allow the suppression of speech which is a “clear and present danger.” The scope of this problem — freedom vs. safety — pierces history. It echoes the language of much of the Left today with regard to free speech and the validity of COVID lockdowns. It also points back to Marx’s own criticism of the 1848 French Constitution, which allowed for the rights guaranteed to be suspended in the name of “safety.”

Is this proof that the Supreme Court is arrayed against the proletariat? It is not so simple. In one case regarding a pamphlet written by supporters of the Bolshevik Revolution, Justice Holmes wrote that “if proletarian dictatorship is bound to win over the public then it ought to be allowed to govern.”⁶

What is democracy? The demand for the state and for the participation of the masses in the state is a violation of the self-understanding of the Revolutionary tradition of the 18^th century. The document issued from 1776 sought to protect from politics and the state the revolutionary social body whose emergence it announced on the stage of world history. The demand for democracy, and the repeating demand for universal suffrage, is for Marx a symptom of the crisis of capitalism. This does not mean a symptom of the existence of “classes” or whatever else, but of the epochal problem of the transitional society — it is a category of contradiction. It is a phenomenon of the bourgeois revolution coming into self-contradiction and crisis and ultimately the necessity of the dictatorship of the proletariat. When Marx called in 1864 for the proletariat to take up the political struggle, he sought to link the Constitutional crisis of the American Civil War to the Revolution that had begun in 1848 so that the unfulfilled bourgeois revolution may attain proletarian leadership.

Socialism is not opposed to liberalism but seeks to take up the desiderata of liberalism in its crisis. The proletarian revolution is not made against the bourgeois revolution, but rather works through the unfinished tasks of that revolution in its hour of need. Marxism as the highest critic of socialism sought to clarify the world historical task of human freedom.

Responses

Daniel Lazare: The American Revolution was fought in defense of existing liberties. The Civil War is a different affair, much closer in spirit to the Jacobin revolution. The American Revolution is almost antithetical to the French Revolution: the last expression of the ancien régime, not the opening blast of the new modern age that the French Revolution inaugurated.

Erin said that socialism is not opposed to liberalism, but actually there is a sharp line between socialism and liberalism, though not between socialism and democracy. Socialists did not conceive of democracy in terms of a checklist of individual rights: freedom of speech, freedom to vote, rule of law, etc. Democracy means popular sovereignty which was briefly enunciated in abstract ways in the Declaration of Independence and the Preamble but really was belied by subsequent American developments.

In 1862 Marx expressed the hope that the constitutional stage of the Civil War was over and that America was now entering a revolutionary stage. Marx looked forward to the overthrow of the Constitution.

The Rage Against the War Machine Rally is one of the most foolish events in recent history, in which certain Leftists paraded critics of the war in Ukraine and a speakers list dominated by fascists and semi-fascists, essentially putting the best face possible on these neo-Nazis, militias, and Second Amendment fans. This was a complete travesty. The chief threat of Bonapartism doesn’t come from the ACLU or Anthony Fauci; it comes from Donald Trump.

CM: Bonapartism is a process. One faction of the ruling class tries to seize control of the state and utilizes the state to stabilize the economy and hold off the effects of the capitalist crisis. The working class can enter politics through figures of the ruling class. Every Marxist revolution has begun as a struggle within the ruling class between various Bonapartist contending factions. That fight opens the door to the working class asserting its own interests. Fascism is one form of Bonapartism, but there is also progressive Bonapartism like Roosevelt or Louis Bonaparte.

EH: Dan, how do you deal with the fact that Marx does speak explicitly about the question of the democratic republic? The Confederacy is aligning itself not only against the free proletariat but also against the legacy of the American Revolution itself. Marx also says that the American Revolution is the first statement of the Declaration of the Rights of Man. Certainly, Jefferson saw himself as an ally of the French Revolution and someone who is part and parcel of the same historical trajectory.

DL: I doubt Marx ever read the U.S. Constitution. When he talks about democracy what I think he means is the absence of an aristocracy, a political-legal leveling where everyone is a citizen on the same legal basis. Marx would describe America pre-1861 as a democracy. He would hail the election of Lincoln as the fulfillment of this democracy and would certainly hope that the constitutional struggle would go on to become a revolutionary struggle and re-found the American Republic on a radically new basis.

In the U.S., the planters and the frontiersmen were pro-Jacobin whereas the landed gentry in Europe were horrified by Jacobinism. It was the urban tradesmen, small businessmen, rising manufacturers, and financiers in Europe who were most pro-Jacobin. The same elements in the U.S. supported the Federalists and were pro-British and hostile to France. It’s a comedy of errors in which the alignment of the Americans is diametrically opposed to that of Europe. Jefferson is racist and truly anti-urban, anti-industrial, and pro-slavery, and yet he is fervently in favor of the radical wing of the French Revolution.

EH: Doesn’t Jefferson try to ban slavery?

DL: He introduced certain anti-slavery legislation in Virginia, but he abandoned that. He and Madison were in the pro-slavery Democratic Party. Jefferson did give vent to certain seemingly radical statements, but he was, in all respects, a profoundly conservative figure, and yet pro-Jacobin. Hamilton, who was hostile to the Jacobins and pro-British, was anti-slavery, an industrialist, an urbanizer, and he was against states’ rights. It’s R. R. Palmer's thesis that Hamilton was an unconscious Jacobin and that Jefferson was much closer to the conservative opposition.

CM: Earl Browder champions Jefferson and portrays Hamilton as the counterrevolutionary, but I think Hamilton and others represent a more progressive wing of the American Revolution.

Q&A

The Constitution also means the whole body of British common law, all of the court decisions, all of the laws, etc. Vernon Parrington said that the discovery that the Constitution in the narrowest sense is a conservative document was the great discovery of the progressive era. Charles Beard’s An Economic Interpretation of the Constitution (1913) demonstrated the extent to which the Constitution was the creation of debt owners, commercial classes, and planters. However, when I think about the history of the American Left, which is in many ways glorious, and the achievements of the American people, it was all accomplished in and through modifying the Constitution. When they created the Constitution, it was opposed by the democratic forces, which were the state legislatures and the anti-federalists. The Constitution was only ratified through the adoption of the Bill of Rights. Of course, the Second Amendment is a problem and states’ rights are problems, but the Bill of Rights is fantastic. Why are we able to have this meeting right now? Because the anti-federalists modified the Constitution. The abolition of slavery was done under the Constitution. When Britain abolished slavery it recompensed the slave owners. We didn’t do that. If we could expropriate slaves we could expropriate capital under the Constitution. We passed the 13^th, 14^th, and 15^th Amendments. I was in the Freedom Summer.⁷ We sought to force the federal government to uphold the 14^th Amendment in Mississippi. Roosevelt’s enemy was not the Constitution. Roosevelt’s enemy was the Supreme Court — and only for a couple of years until he created the Warren Court. The constitutional achievements of the New Deal are not just that we can regulate business, which they had argued under the Constitution; it was a constitutional revolution. Business regulation, criminal rights, desegregation, and voting rights were all part of the achievements of the Warren Court, and of the New Deal. The abolition of slavery during the Civil War, the New Deal revolution which extends into the 1960s, and the Warren Court are three moments in which our Constitution was modified in a positive direction. The Constitution is the enemy of populism. It’s not the enemy of socialism.

DL: Beard’s interpretation of the Constitution was populist in the worst sense of the word. It was not a con by rich people to trick the little people. The Constitution was a significant democratic advance in that it opened up, for the first time, a democratic theater encompassing the entire country. That strengthened the anti-slavery forces because it meant that the South couldn’t carry on on its own, in its separate territory. The anti-federalists were not in any way progressive; they were the states’ rightists of their day. Many of them were pro-slavery, especially in the South. The three Civil War amendments were paradoxes that were adopted unconstitutionally by stretching Article 5 beyond recognition. Tennessee was forced to approve the 14^th Amendment literally at gunpoint. They were extra-constitutional. The Warren Court, of course, was a quasi-revolutionary force. We are now seeing the unwinding of that process with the repeal of Roe v. Wade. The court is now reverting to its traditional role as a bulwark of conservatism and anti-democracy.

Are bribery and corruption undermining our constitutional rights?

DL: When we talk about constitutional rights, what rights are we talking about? The right to shoot your neighbor’s family because he objects to you shooting off your AR-15 in the middle of the night? Is the Second Amendment a constitutional right that we should defend? We should be talking about democratic rights.

EH: I wonder what you would think of somebody like Rosa Luxemburg, who thought that the proletariat needs to arm themselves. The Second Amendment is about the right to organize oneself for revolutionary action and also to defend oneself. The Second Amendment doesn’t give anyone the right to just shoot anybody with impunity.

DL: An individual right to bear arms is the opposite of a worker’s militia. The arms are held by the working class in common, not individually. To impose a monopoly on violence, a worker’s militia must and will disarm the American population, concentrating all weapons in the collective ownership of the working class.

EH: But the American population has to have weapons for them to be disarmed by the proletariat. If they’re disarmed by the capitalist state then what are we talking about?

DL: The Second Amendment is the opposite of a worker’s militia as conceived by Luxemburg or Trotsky.

CM: In the 1930s, fascist groups were shooting down workers on the picket line. Do we call the government to protect the striking workers or do we form our own workers’ militia? In the 1960s, black people were defending themselves against the police. Do we call for gun control or do we allow people to defend themselves? It is quite an illusion that the capitalist state is going to keep everyone safe. Gun ownership is not racist and defending the Second Amendment is not the equivalent of defending hate crimes.

DL: No modern democratic constituent assembly would recreate the horror of a right to bear arms which is causing a catastrophe in our society and is the rallying cry of the far-Right militias. Weapons would only be owned with the express permission and under the conditions of the democratic state.

EH: Isn’t the elephant in the room that today this means the capitalist state would regulate gun ownership?

DL: The capitalist state is not going to do that because it is dominated by Right-wing elements who essentially see the Second Amendment as every bit as important as the First Amendment.

What is the significance of the Popular Front?

DL: The Popular Front was an alliance of communists and liberals in support of Roosevelt in an attempt to forge a broad alliance of liberalism against fascism. Trotsky was in favor of a worker’s front where the working class opposes liberalism and fascism. The collapse of liberalism laid the basis for fascism. The workers must put forward a program of revolutionary socialism and revolutionary democracy, a constituent assembly elected by one-person-one-vote on the basis of a proportional representation. The constituent assembly can say, “from now on you will hold your fork in your left hand rather than your right hand.” It has unchecked power. The bourgeoisie want to see popular power broken up and pitted against each other through checks and balances.

CM: The Popular Front was the period in history when Marxism and communism had the greatest influence. It was an alliance with the Roosevelt coalition and progressive forces. Roosevelt was all about growth. The progressive movement today thinks that growth is bad. The Popular Front told white workers that racism hurt them, while today “anti-racists” tell white people that racism helps them. Aligning with Roosevelt was not the equivalent of aligning with Joe Biden. Aligning with Roosevelt would be the equivalent of aligning with Trump or a figure who’s vehemently fighting against the majority of his own class.

Bernie Sanders!

CM: Yes!

Is the Constitution fundamentally racist?

CM: The Constitution is a tactical question. Historically, states’ rights have been used for racism, so I wouldn’t support it today. However, before the U.S. Civil War, one could support states’ rights to nullify the fugitive slave laws. That’s what’s important about being a Marxist: there’s no sacred eternality to these questions. We view it from a class and anti-imperialist perspective according to context.

DL: Yes, the Constitution was racist. First of all, America was racist. Black people, with few exceptions, could not vote. The Constitution wound up strengthening slavery. It rendered it legally impregnable. We needed the extra-constitutional Civil War to do away with slavery. The irony is that the Constitution also strengthened anti-slavery forces, but the Constitution was riddled with deep racism.

We need to develop a theory of the American republic and that means developing a theory of the structure of the Constitution of that republic. That means understanding the relationship between law and society. Is law under society? Is law over society? Is the rule of law desirable in itself or is the law an instrument of the revolutionary dictatorship? What does democracy mean?

EH: Dan raised popular sovereignty, and we need to address it. It’s the Ninth Amendment to the Constitution: power to the people. What is meant by popular sovereignty? Is it simply the masses of people? What is the relationship between those people and the state? Marx writes about this in the Eighteenth Brumaire of Louis Bonaparte (1852): In 1789, and later with the ascension of Napoleon I, the revolutionary people were led first by a democratic republic then Napoleon I. Under Louis Bonaparte the people are no longer revolutionary and so the demand for democracy, which once seemed to be a tool against the old feudal order, becomes an instrument of repression, which is nevertheless demanded democratically.

In ancient civilizations, democracy meant the right to vote about whether you’re going to stone somebody for cheating on her husband. In modern society, we hope that the state will not determine our social life. That is the vision of the bourgeois revolutions as reflected in the Constitution, which sought to protect that revolutionary society against an oppressive state. In the crisis of society, why is the demand for democracy posed? If you were living in 18^th century America, you didn’t necessarily need to vote. That is, your ability to determine your life was not tied to the state. When the interests of society no longer seem to be universal, what is the recourse one has? Politics and the demand for democracy. Marxism sought to clarify the meaning of that demand, and the party for socialism sought to mediate the relationship between the self-organization of people in society, their demands on the state, and the state itself. In the absence of the party, we have a severe confusion about the relationship between society and the state, or what society even is.

We’ve left ourselves in the realm of progressive politics to have a discussion of how the progressive state should or shouldn’t manage social life under capitalism. As long as that is the narrow straightjacket in which we conceive of the question of socialist politics, it’s going to be difficult to understand what historical Marxism was, or to even ask questions about what revolution might be. In a poem, Robert Frost looked at this whole history and said, maybe we’re going to be befuddled by Jefferson for another thousand years because the bourgeois revolution isn’t a system of ideas, it’s not a logic of a constitution, it’s a historical process.⁸ Marxism sought to relate to that historical process critically. |P

Transcribed by Oliver Chasan

1 See, e.g., Daniel Lazare, “Ditch the constitution,” Weekly Worker 1489 (May 2, 2024), <https://weeklyworker.co.uk/worker/1489/ditch-the-constitution/>.

2 Available online at <https://youtu.be/Gf3ciW2ih8c>.

3 Karl Marx, “Address of the International Working Men’s Association to Abraham Lincoln, President of the United States of America” (November 29, 1864), The Bee-Hive Newspaper 169 (January 7, 1865), <https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm>.

4 Woodrow Wilson, “Notes for Lectures,” in The Papers of Woodrow Wilson, vol. 7, ed. Arthur S. Link (Princeton: Princeton University Press, 1969), 121: “The functions of government are in a very real sense independent of legislation, and even constitutions, because [they are] as old as government and inherent in its very nature. The bulk and complex minuteness of our positive law, which covers almost every case that can arise in Administration, obscures for us the fact that Administration cannot wait upon legislation, but must be given leave, or take it, to proceed without specific warrant in giving effect to the characteristic life of the State.”

5 Woodrow Wilson, “What is Progress?,” in The New Freedom: A Call for the Emancipation of the Generous Energies of a People (New York: Doubleday, Page & Company, 1913).

6 Justice Holmes’s dissent in Abrams v. United States, 250 U.S. 616 (1919). This case concerns two supporters of the Bolshevik Revolution who were sentenced to 20 years in prison for distributing pamphlets criticizing the American government's support of the Whites in Russia and calling for international proletarian revolution. Justice Holmes’s dissenting opinion in Abrams v. United States in some ways reversed, or at least questioned, his earlier opinion in Schenck v. United States upholding the prosecution of Charles Schenck for sending leaflets through the mail critical of World War I. The Schenck opinion established the “clear and present danger test” as an exception to First Amendment rights in cases where the speech was a “clear and present danger” to national security and was the basis for upholding the prosecution of socialists, including most famously Eugene Debs, under the 1917 Espionage Act for criticism of World War I.

7 Freedom Summer, also known as Mississippi Freedom Summer, was an American civil rights campaign in June 1964 to register as many black voters as possible in the state of Mississippi.

8 Robert Frost, “The Black Cottage,” in North of Boston (London: David Nutt, 1914).