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• 2• The Popular Sources of Political Authority in 1856 San Francisco Lynching, Vigilance, and the Difference between Politics and Constitutionalism Christopher Waldrep Lynching in both the West and the South articulated a question central to American thought in the nineteenth century, if not throughout the entire American experience. Should—or could—abstract principles of justice trump majority will? Throughout their history Americans organized crowds, or mobs, to achieve a wide variety of goals, including crime control. A crowd may not represent a true majority, but the people in the crowd, feeling empowered by their numbers, can imagine themselves the genuine voice of the people. The most spectacular western lynching episode came in 1856 when San Francisco residents organized a Vigilance Committee to lynch four men. They had done this before, in 1851, but the 1856 committee lasted longer and grabbed more attention from newspapers across the nation than the earlier episode. Throughout the summer of 1856, newspapers devoted columns and whole pages to the vigilantes’ attempts to justify themselves. That so many Americans found the vigilantes’ arguments plausible foretold not only the sovereign localism that animated white southerners in the Civil War but the spasm of popular violence that would engulf the nation as lynching after Reconstruction. Many Americans thought the San Francisco vigilantes “socially constructive,” a term Richard Maxwell • 55 • Popular Sources of Political Authority in 1856 San Francisco Brown used to distinguish vigilantism from “socially destructive” lynching . Mary Ryan finds nothing socially positive in San Francisco, saying that the San Francisco vigilantes lynched their victims.1 Ryan argues that the vigilantes excluded Irish Catholics, maintained a closed membership, and generally subverted real democracy. They took power not by the vote but by the noose and the gun, Ryan observes. Despite their vigorous protestations , they were not truly democratic; their actions were not really political.2 On this point hangs the significance of the whole affair. This essay will dispute both Brown and Ryan to argue that the numbers supporting the San Francisco vigilantes were a transient political majority, acting in defiance of constitutional principle, and thus it cannot be said that their lynchings were socially positive or antidemocratic. The vigilantes represented not electoral politics but politics out of doors, direct action, all language used to describe crowds favoring the American Revolution and, more recently, civil rights protest. But those movements appealed to constitutional principles; the San Francisco vigilantes appealed not to constitutionalism but to anticonstitutionalism, pure politics, power based on numbers for its legitimacy and not shared constitutional principle . The reaction of the rest of the country and the federal government to this anticonstitutionalism reveals that much of the nation embraced popular sovereignty and politics over constitutionalism in the decade before Reconstruction. The roots of American toleration for southern lynching can be found not only in racism but in the ideas about law and politics that most Americans followed in 1856 and after.3 For at least twenty years legal academics have blurred the line between constitutional and political questions, exploring the social and political forces that not only created but enlivened constitutional forms. Constitutional interpretation takes place in the courts, but not only in the courts and perhaps not even often in court. The political branches and the community at large also decide constitutional questions.4 One legal scholar has observed that he had once thought constitutional history “synonymous with the history of judicial politics” but now saw it “largely [as] the history of electoral politics.”5 Another scholar has written that debates over the Constitution informed nearly every public question in the nineteenth century. Americans found it impossible to debate such issues as voting rights, business regulation, or oleomargarine without considering “centralization,” how power should be distributed and the limits the Constitution placed on the national government, manifestly a constitutional question.6 • 56 • Christopher Waldrep All of these authors have effectively documented the complicated dialectic between law, with its emphasis on constraints, and politics, with its promise of free choice. But they all miss one of the biggest issues nineteenth -century Americans faced: whether crime could really be controlled through formal legal procedures carried out by constitutionally created institutions. This must be because the answer seems so obvious to us, but it was not at all obvious to nineteenth-century folk. Larry D. Kramer has recognized crowd action as a site where law and politics met, but he means in the middle of the eighteenth century, not afterward. Kramer argues that by the end of the...


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