Gary Jacobsohn’s theory of constitutional identity speaks to normative questions about the exercise of constituent power in constitution making. To gain purchase on these questions, this article applies Rousseau’s description of three "moments" of citizenship to the creation and maintenance of constitutional orders. Jacobsohn’s understanding of constitutional identity as something that emerges over time as opposed to an episodic expression enriches the Rousseauian model’s response to the paradoxes of democracy. Ultimately, Jacobsohn’s model implies that true constituent power is exercised only in the form of a dialogue within a shared understanding of democratic legitimacy, raising the possibility that moments of violent disruptive constitutional change cannot be accommodated to the requirements of democratic legitimacy at all – a return to Rousseau’s paradox of founding.

The chapter looks at Virgil’s Aeneid and the American Western The Outlaw Josey Wales to identify a Roman and American shared founding narrative of a community of Strangers dislocated from history and place. What emerges from Virgil, and gives us insight into America’s founding experience, is that the connection between past and future hinges on a paradox. The community is defined neither by a lineage of a people nor by a place, but is forged by the experience of dislocation. The sense of a future, which for both Rome and America lie in the promise of a new age, does not rest on a continuity with the past but on the experience of discontinuity. The power of these narratives is that they provide a basis for the incorporation of new peoples and new territory. But the myth haunts the Roman imagination like it does the American. If there is nothing natural, fixed, or visible about who is included as Roman or American, then it is not clear what constitutes a We rather than a They.

Six modern foundings are examined in this book. Three of them involved the creation of non-democratic states: the dictatorship of the proletariat that arose out of the Russian Revolution; the fascist regime brought to life in 1933 Germany; and the Islamic republic that emerged during the Iranian Revolution. While fascinating in their own right, these will serve as a useful foil for the founding of three states whose sovereignty rests, in whole or in part, on their dedication to those principles we have come to associate with traditional democracies: the unwritten English Constitution as the embodiment of the rights of Englishmen; the American Constitution that was created after those rights of Englishmen were denied to the colonists; and the French Revolution that asserted the rights of man as a justification for its demolition of monarchy and the decadent remains of feudalism. However, as will become clear in the examination of these cases, the distinction between non-democratic and democratic foundings largely depends on the normative commitments of the beholder.1

How might a close reading of the language of revolutionary-era anti-slavery petitions contribute to a broader understanding of the politics of the American founding? This chapter focuses on one of the earliest surviving examples of African American political writing, the petition submitted to the Massachusetts House of Representatives in January 1773, by an author named FELIX. Revolutionary republicans came to disparage the petitionary form, because it had failed to persuade King George to defend his colonial subjects. The petition’s conventional language of deference and its tendency to “pray” or plead rather than to demand or insist led many colonists to reject the form in favor of far more assertive declarations of individual and collective right. By reanimating the petition, however, African Americans like FELIX not only contributed to the work of anti-slavery agitation; they also, as this chapter suggests, registered resistance to some of the dominant political ideas of the republican revolution. Drawing on historical studies of the significance of the petition in the colonies as well as accounts of the petition’s key formal and rhetorical features, this chapter makes the case for a specifically African American contribution to the political discourse of the founding.

This introductory chapter reflects upon the centrality of the Constitution to American political life and outlines the central themes of this book. It provides a summary of its overarching argument that the navigation of abolitionist pressure on slavery in the District of Columbia in the 1830s prompted a turn toward the concept of spirit, and particularly the spirit of 1787, within American constitutional thought. The chapter contains a plan of the subsequent chapters.

This chapter explores the ways in which the interracial immediatist abolition movement of the early 1830s fashioned a conception of abolition as the fulfillment of commitments made at the time of the Revolution but which subsequent actions had left unmet. Casting themselves as acting in parallel to the founding fathers and expressing concern for the possibility of transmitting an unfulfilled revolutionary settlement to posterity, abolitionists sought to navigate their relationship with the nation’s founding documents. Attempting to systematize this relationship, some came to argue that the Constitution ought to be interpreted in accordance with the Declaration of Independence. Others would go further and argue that the Declaration was more fundamental than the U.S. Constitution itself. Just as earlier arguments had cultivated a sense of American national identity tied to the principle of equality, these variations furthered the association of the claim that “all men are created equal” with the American sense of self and contributed to the formation of a national identity with significant ideological content.

In this concluding chapter, I consider how the development of a particular attachment to the founding has shaped constitutional development in the United States and how an alterative grounding in the constitutional thought of Thomas Paine and Thomas Jefferson might provide intellectual resources for a renewed democratic constitutionalism in contemporary American politics.

This chapter examines the afterlife of the Compact of 1836 in abolitionist and proslavery thought. To a significant extent abolitionists after 1836 accepted the authority of the spirit of 1787 and sought to fashion an abolitionism within that framework. One strand of such a response was represented in the Garrisonian rejection of the Constitution as a legitimate authority. A second strand challenged the characterization of that spirit as protective of slavery through a claim that the Constitution represented an attempt by antislavery founders to grapple with the reality of slavery in their historical moment. In concert with these developments, after 1836 supporters of slavery began to refine their own understanding of the role of spirit in constitutional interpretation by prioritizing the recognition of slavery as a constitutional institution. To different ends both groups would gravitate in the 1840s toward a view of the Constitution as correctly understood only with reference to the attitudes that were prevalent at the time of its creation. Thus the legacy of the compact of 1836 would be a legitimization of the constitutional authority of 1787–88.

John Dickinson (1732–1809) was a Founder of the United States whose jurisprudence was greatly influenced by Quakerism. Although he never joined the Religious Society of Friends, Dickinson adopted the basic tenets of their religion, particularly the belief in the Light of Christ in the conscience, which caused them to consider all people spiritually equal, regardless of gender, race, or socio-economic status. The strong and outspoken Quaker women in Dickinson’s life—his mother, wife, daughters, and a range of other female friends and relatives—influenced him to advocate for women in his legal practice and in his work to found the nation. Among the leading Founders, Dickinson was the only one to press for women’s rights, making him an early feminist.