Americans who hate the Constitution will do anything to change it. No one demonstrated that he was superior to the white supremacists of South Carolina after the civil war.
They were a small number of nations, but were used to being told in every way that their skin color was entitled to dominate. So they were furious when ex-slaves enforced racial equality and first encouraged black participation in the political process. As soon as that constitution was written, white supremacists pledged their lives, property and honor to support their decades of efforts to rewrite it. They formed two terrorist organizations and used them to wage war against the government, including killing civil servants in wide sunlight. To ultimately win an election that allowed them to call a new constitutional treaty, some of them voted 20 times in a day, threatening black voters at gunpoint. When it sparked election disputes instead of a clear victory, they formed their own legislature, took over the state capitol, launched a governor of their favourite candidate, and persuaded the federal government to set up their coup. And when white supremacists finally summoned the constitutional treaty in 1895, they cast a racial cap on a small number of black representatives during official lawsuits before disenfranchising black voters throughout the state.
This is not the way we usually imagine constitutional production. Instead, he imagines that the founding father, who gathered in Philadelphia in the summer of 1787, would turn their highest ideals into the US Constitution. I imagine George Washington quietly hosting, but the intellectual giant debated how best to elect a US president. Or, Benjamin Franklin expects to emerge from the treaty to urge representatives to sign the final document, even if they are suspected, and to communicate to concerned citizens that they have a Republic if they can protect it. And because the US Constitution has endured for over 200 years, you can literally go see it at the National Archives in Washington, DC, and enjoy the fact that it is still in force. This is an exciting part and an important story in our country’s constitutional story. But there is another depressing constitutional story that is equally important. Instead of success and gentle deliberation, it involves failure and a violent crisis. Where the drafting of the constitution did not unite us, but torn us apart. Today’s constitutional orders rest in places like South Carolina, just like Philadelphia in 1895, in 1787.
To tell that constitutional story, I will mainly focus on the constitution of our state. We generally pay less attention to the national constitution than the US Constitution, but they are equally important parts of the American constitutional system. All Americans live under two constitutions. One lives for their nation, the other for the entire nation. The state’s constitution affects you in a profound way. They protect rights that the US Constitution does not, like the right to education. They decide who can become a member of your state legislature and how it can tax you. They defined who qualifies as governor and whether the person can reject maps drawn by Congress, and elected representatives of your state to Congress. If you are one of the millions of Americans who operate in state courts each year, the state constitution regulates how the judge who presides over your case was chosen. And they gave discussions about whether your state government can close schools or whether you can request that you receive the vaccine when the Covid-19 pandemic is furious. More than that, the state’s constitution had a powerful influence on the US constitution. Most of what you value about the US Constitution, including free expression and the right to separation of power, began with the state constitution. In short, state constitutions can teach you about American constitutional laws that you don’t know about just learning about the US constitution.
In our age of polarization, the term “constitutional crisis” is overused. I use this term to refer to a particular moment in which a constitutional order threatens to break down. I meant the contested elections that produced two governments and the success of a military-style campaign to overthrow the government. The book progresses in two parts. The first concerns the constitutional crisis in pre-civil war states. During the American Revolution, the state drafted the first constitution. The constitutions of these early states played an important role in defining America, informing us how the founders wrote the American Constitution in 1787. I looked into the need to resolve the drafters of the difficult and divisive questions of the first national constitution. These include those mean “popular sovereignty” and “freedom” in the new republic. Next, we show how these same issues have broken down the state’s constitution in a dramatic way. Such incidents have predicted and helped to have caused the country’s worst constitutional crisis and the Civil War.
The second part considers the constitutional crisis of the state under reconstruction and the rise of Jim Crow. Civil wars and reconstruction cast a long shadow on our history. That’s not surprising for a war that produced more deaths than all other wars in America combined. For many Americans worried about constitutional crisis, civil war serves as an example of how a constitutional crisis can produce devastating consequences. We are still fighting the legacy of war in discussions about slavery and what to teach students about whether Confederate monuments should be eliminated. One day, all students will learn about abolishing slavery in the US Constitution, ensuring equal protection under the law, and banning racism in the vote. However, we have failed to understand another important legacy from the era of reconstruction: the steady flow of the state’s constitutional crisis. Aside from its founding era, reconstruction saw the biggest burst of constitutional writing at the state level of American history. This part records how the conflict between the new constitutional vision of racial equality and the new constitutional vision of white hegemony that reached its peak in almost every southern state experiencing the Civil War years later at the national level.
In total, I provide six examples of constitutional crisis. Think of them as six episodes that tell one constitutional story. Along the way, you will meet your father, whom you studied at school. You will know that a fairer nation, the villain is committed to fighting teeth and claws and protecting an unfair constitutional order. You’ll know the fear that the vulnerable Americans who needed constitutional protection most felt as they approached the edge of the deep by constitutional law, the trauma they experienced when they were pushed in, and the heartbreak that lived while wondering if someone would pull them out.
In conclusion, we will explain how reexamining the constitutional crisis in forgotten states can remind us of important lessons about American history and confront the underrated threat to the health of the constitutional system. Over the past few years, I have seen more Americans than ever before about constitutional crisis at the national level. On January 6, 2021, then-President Donald Trump told supporters that the recent presidential election had been stolen from him. He warned, “If you don’t fight like hell, you won’t have a country anymore.” His supporters, carrying many weapons, violated safety in the Capitol building, causing officials to fear their lives, and temporarily prevented Congress from acknowledging election votes. The aftermath saw a passionate national debate about whether Trump was criminally liable for his actions and whether the US Constitution disqualified him from the 2024 election. With national politics already on the edge of the knife, Americans considered whether Trump survived the assassin bullets slightly and whether concerns about President Joseph Biden’s mental capabilities justified using the 25th Amendment to eliminate him. In attempting to navigate these constitutional dangers, Americans also discuss various amendments to ensure stability in the constitutional system. In conclusion, I ask that some of that attention be directed to the state constitution.
I think this book will benefit jurists, historians, judges and lawyers. But if you’re not those, this book is about the same for you. Our state’s constitution belongs to all of us, like the US Constitution, regardless of the background. Whatever your education level or occupation, you need to understand our full constitutional history in order to truly assess the constitutional dangers we face. And you have an important role to play in maintaining our constitutional order.
Marcus Gadson is an associate professor of law at the University of North Carolina Chapel Hill. His new book, Incitement: How America’s constitutional order emerged from a violent crisisthe history of America’s constitutional crisis is now available. Gadson created Essay Regarding the North Carolina Constitution State Court Report State Constitution series.
Suggested Quote: Marcus Gadson, Reservation reservation: Instigation: How America’s constitutional order emerged from a violent crisis, sᴛᴀᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (September 19, 2025), https://statecourtreport.org/our-work/analysis-opinion/book-excerpt-sedition-how-americas concontental- emerged-violent
