The Black Panther Party and the Unlikely Union of Marxism and Constitutional Law, 1966-1971

• In Event: Sociology of Law Section Roundtables Session
  In Refereed Roundtable (60 minute): Sociology of Law Section Roundtables: Table 4 — Memory, History, and Law

Abstract

This article examines the interplay between popular constitutionalism, Marxism, and prefigurative politics within the protest strategies, political identity, and legal consciousness of the Black Panther Party. I argue that the Panthers read the American Constitution through a socialist lens and translated their legal interpretations into everyday social practice through three major protest efforts: police patrols, mock “people’s trials,” and the “Revolutionary People’s Constitutional Convention” in 1970. By tangibly demonstrating the necessity of “taking,” not asking, for their constitutional rights, the Panthers performatively prefigured a post-revolutionary, socialist society in which abstract constitutional promises would be concretized and seized on their own interpretive terms. Legal consciousness scholars have overlooked these insights about how radical activists use the Constitution to envision alternative socio-legal worlds, in large part because the broader field of law and social movements gives little empirical attention to Black radicalism and revolutionary activism. The operating assumption within mainstream legal consciousness scholarship is that even if activists question the unequal distribution of rights and resources, they accept the legitimacy of the state itself. In this line of thinking, when activists invoke the Constitution, they are implicitly acquiescing to the rule of law, institutional arrangements, and liberal legalism. Conversely, the Panthers advanced an anti-capitalist, anti-racist socialist agenda in which they sought to establish a new set of constitutional norms and repurpose the Constitution as a revolutionary tool that would abolish the state itself. Their engagement in popular constitutionalism, that is, corresponded to a future-oriented vision excised from the present set of institutional arrangements. Understanding how radical activists can simultaneously exhibit a constitutional and an abolitionist legal consciousness, I suggest, is an overlooked insight that is integral to understanding the ideological role of law within revolutionary social movements.

Author

• Willa B. Sachs, Yale University