Both constituent power and political disobedience (i.e. politically motivated lawbreaking) are controversial political ideas that take a variety of forms. This piece offers an ideal-typical framework for exploring the relationship between influential accounts of constituent power and similarly influential ideas about political disobedience. Some versions of constituent power cohere with concepts of revolution (and/or counter-revolution); others with political resistance, interpreted in a broad and probably indeterminate fashion; finally, a third version meshes with familiar notions of non-violent civil disobedience. The author provides provisional grounds for endorsing the final model, in part by underscoring both the advantages of a post-sovereign version of constituent power and non-violent civil disobedience, at least when not viewed in an overly restrictive fashion.

This essay revisits my earlier 1999 critique (Between Radicalism and Resignation: Democratic Theory in Habermas’ ,Between Facts and Norms‘) of Habermas’ most important contribution to political and legal theory. Some of my criticisms stemmed from a failure to address the book’s complicated attempt to navigate between ,facts‘ and ,norms‘, and thus Habermas’ vision of ,rational reconstruction‘. Nonetheless, I argue that key elements of that original criticism not only remain pertinent, but that they can help us understand lacunae within Habermas’ more recent contributions to a critical theory of politics. First, my worries about Habermas’ apparent marginalization of systematic Kapitalismuskritik have been corroborated by his more recent writings. Second, there is no question that Habermas borrowed heavily from the democratic theory developed by Bernhard Peters, an important interlocutor for Habermas in the Frankfurt legal theory study group he coordinated during the late 1980s and early 1990s. Habermas’ debts to Peters have continued to shape his thinking. While they have helped Habermas pursue some productive analytic paths, others, unfortunately, have consequently been neglected.

Nearly three years ago I wrote here about the far-right constitutional theory behind Trump lawyer John Eastman’s role in the inept yet deadly January 6, 2021 coup attempt against then President-elect Joe Biden. I described the idiosyncratic reworking by Eastman and other so-called west-coast Straussians at California’s Claremont Institute of the ideas of the German-Jewish refugee Leo Strauss, an imposing, deeply conservative political theorist, into an apology for an executive-directed counterrevolution aimed ostensibly at restoring the original US constitutional order. Little did I imagine that Strauss’ Claremont disciples would soon enjoy a political comeback, and that they would once again be wreaking constitutional havoc.

Populist authoritarianism is a global phenomenon. However, the US is the only so-called consolidated democracy where its ascent has been eased by the systematic dismantling of legal limits on campaign donations. US elections are now not only the world’s most costly, but they are also directly subject to the inordinate influence of wealthy individuals and corporations. The Supreme Court of the United States’ 2019 Citizens United v. Federal Election Commission ruling has paved the way for the emergence of so-called “super” PACS (political action committees) that, while formally barred from coordinating with candidates or parties, can accept unlimited corporate contributions.

The article analyzes politically motivated property damage and destruction, or property disobedience, an increasingly prominent feature of contemporary worldwide protest politics. It then explores the possibility that political theory as democratic underlaboring potentially offers a useful of framework for analysis. One possible advantage to democratic underlaboring is that it calls on us to heed how political participants in protest movements, as well as their critics, interpret their acts. Doing so offers a crucial first step toward respectfully but critically analyzing contemporary modes of political protest within more-or-less democratic contexts. One possible disadvantage is methodological: democratic underlaboring presupposes more-or-less democratic political conditions in a global context characterized by the ascent of authoritarian populism. The essay begins starts by describing key features of property disobedience and highlighting its growing significance, before exploring democratic underlaboring as a possible methodological approach. Then, with attention to some resulting research-related puzzles, I discuss possible weaknesses. Specifically, democratic backsliding threatens to undermine crucial building blocks on which democratic underlaboring necessarily relies, in part by blurring the divide between more-or-less democratic

Given authoritarianism's resurgence, defenders of democracy are scrambling to identify political antidotes. Corporate civil disobedience (CCD), or politically motivated lawbreaking by business corporations that is civil (or public-minded), morally conscientious, nonviolent, public, and respectful of the law, seems to offer one useful political tool. This article sketches the strongest case for CCD before moving to consider its normative and political perils. Despite its many strengths, CCD's proponents sideline harsh organizational realities of (especially) large for-profit business corporations, many of which are best characterized as more-or-less authoritarian private governments. As such, it is unlikely that CCD can meet the relatively demanding conditions of civil disobedience, as standardly conceived. Given liberal democracy's necessary commitment to political equality, it does not make sense to provide space for CCD, though the case of small business may be an exception. However, democratic backsliding complicates matters. With reference to John Rawls, I posit that the problematic case for CCD becomes less so when democracy faces severe authoritarian challenges. CCD may be permissible in the context of democratic backsliding to an extent that is not the case under more-or-less ordinary democratic conditions.

AbstractLiberal views of civil disobedience that emerged in the 1960s and ’70s can only be properly interpreted with recourse to the complicated history of the early civil rights movement's selective appropriation of the labor sit-downs of the 1930s. This essay addresses the messy but basically successful effort by civil rights sit-inners and the lawyers who defended them to circumvent the repressive state and legal response—especially the US Supreme Court ruling in National Labor Relations Board v. Fansteel Metallurgical Corporation (1939)—that the 1930s sit-downers garnered. My reexamination of the sit-ins places influential liberal ideas about civil disobedience in a fresh light. In his influential theory of civil disobedience, John Rawls mirrored key features of the politically and legally savvy strategy of delinking the lunch counter sit-ins from the workplace sit-downs. The result was a somewhat restrictive view of civil disobedience that sidelined matters of economic justice.

Can politically inspired property damage or destruction be justified? This question is hardly of mere academic interest, in light of recent political protests in Hong Kong, the USA, and elsewhere. Against some contemporary writers, I argue that placing property damage under an open-ended rubric of uncivil disobedience does not generate the necessary conceptual and normative distinctions. Drawing on Martin Luther King, Jr., I instead argue that property damage should not be equated or conflated with violence against persons; it also takes a variety of quite different forms. Anyone hoping to pursue politically motivated property damage should meet preconditions whose stringency will be determined by a key question: Do their acts generate or at least plausibly relate to violence against persons? Our answer to the question provide some space for legitimate, politically motivated property damage. Although some theories of property resist the strict delineation of violence to persons from property damage I defend, they fail to capture the realities of property ownership in existing societies, including the USA and, as such, do not undermine my defense, under existing conditions, of limited property damage.