Book Excerpt: Sedition: How America's Constitutional Order Emerged from Violent Crisis 

Americans who hate their constitution will do anything to change it. No one demonstrated that better than South Carolina’s white supremacists after the Civil War.

Though they were a minority of the state, they were used to being told in every way possible that their skin color entitled them to rule. So they were enraged when their former slaves made a constitution guaranteeing racial equality and encouraging Black participation in the political process for the first time. As soon as that constitution was written, white supremacists pledged their lives, fortunes, and honor in support of a decades-long effort to rewrite it. They formed two terrorist organizations and used them to wage a war against the government that included murdering public officials in broad daylight. To win an election that would eventually allow them to call a new constitutional convention, some of them voted 20 times in one day and threatened Black voters at gunpoint. When that yielded an election dispute instead of a clear victory, they formed their own legislature, took over the state house, inaugurated their preferred candidate governor, and convinced the federal government to let their coup d’état stand. And when white supremacists finally called their constitutional convention in 1895, they hurled racial epihets at the handful of Black delegates during official proceedings before disenfranchising Black voters across the state.

This is not how we usually picture constitution-making. Instead, we picture our founding fathers gathering in Philadelphia during the summer of 1787 to turn their high-minded ideals into the U.S. Constitution. We imagine George Washington presiding silently while intellectual giants debated how best to select the president of the United States. Or we envision Benjamin Franklin urging delegates to sign the final document even if they had doubts and then emerging from the convention to tell concerned citizens that they now had a republic if only they could keep it. And because the U.S. Constitution has endured for over 200 years, we can literally go see it at the National Archives in Washington, DC, and revel in the fact that it is still in force. This is an inspiring part of our nation’s constitutional story and an important one. But there is another dispiriting constitutional story that is just as important. One that involves failure and violent crisis instead of success and calm deliberation. One where constitution drafting has torn us apart instead of brought us together. Our constitutional order today owes as much to places like South Carolina in 1895 as it does to Philadelphia in 1787.

To tell that constitutional story, I will focus primarily on our state constitutions. Although we generally pay less attention to state constitutions than the U.S. Constitution, they are an equally important part of the American constitutional system. Every American lives under two constitutions, one for their state, and one for the entire nation. State constitutions affect you in profound ways. They protect rights that the U.S. Constitution does not, like the right to an education. They determine who can be a member of your state legislature and how it can tax you. They define who is eligible to be governor and whether that person can veto the maps the legislature drew to elect your state’s representatives to Congress. If you are one of the millions of Americans who has business in a state court every year, state constitutions regulate how the judge presiding over your case is chosen. And they informed discussions about whether your state’s government could close schools or require you to receive a vaccine when the Covid-19 pandemic raged. More than that, state constitutions powerfully influenced the U.S. Constitution. Most of what you value about the U.S. Constitution, such as its right to free expression and separation of powers, started in state constitutions. In short, state constitutions can teach you things about American constitutional law that you wouldn’t know just by learning about the U.S. Constitution.

In our polarized era, the term “constitutional crisis” is overused. I use the term to refer to specific moments when our constitutional order threatens to break down. I mean things like contested elections producing two governments and successful military-style campaigns to overthrow the government. The book proceeds in two parts. The first is about state constitutional crises prior to the Civil War. During the American Revolution, states drafted the first constitutions. These early state constitutions played a crucial role in defining America and informed how the founders wrote the U.S. Constitution in 1787. I examine the difficult and divisive questions drafters of the first state constitutions had to resolve. These include what “popular sovereignty” and “liberty” would mean in a new republic. I then demonstrate how these same issues caused state constitutions to break down in dramatic fashion. Such incidents both foreshadowed and helped cause the country’s worst constitutional crisis: the Civil War.

The second part considers state constitutional crises during Reconstruction and the rise of Jim Crow. The Civil War and Reconstruction have cast a long shadow over our history. That is unsurprising for a war that produced more dead than all of America’s other wars combined. For many Americans worried about constitutional crisis, the Civil War serves as an example of how constitutional crisis can produce devastating consequences. We are still fighting about the war’s legacy in debates over what we should teach students about slavery and whether we should remove confederate memorials. At one time or another, every student learns about amendments to the U.S. Constitution abolishing slavery, guaranteeing equal protection under the law, and prohibiting racial discrimination in voting. Yet, we have failed to appreciate another important legacy from the Reconstruction era: a steady stream of state constitutional crises. Aside from the founding era, Reconstruction saw the greatest burst of constitution writing at the state level in American history. In this part, I document how a conflict between a new constitutional vision of racial equality and an older one of white supremacy culminated in almost every southern state experiencing a civil war of its own — just a few years after the one at the national level.

In total, I provide six examples of constitutional crisis. Think of them as six episodes telling one constitutional story. Along the way, you will meet founding fathers you learned about in school. You will get to know heroes committed to building a more just country, villains fighting tooth and nail to defend an unjust constitutional order, and people who were both. You will know the terror that vulnerable Americans who most needed constitutional protection felt as they came up to the edge of the constitutional abyss, the trauma they experienced when they were shoved in, and the heartbreak they lived with while they wondered if anyone would ever pull them out.

In the conclusion, I explain how revisiting forgotten state constitutional crises can help us remember important lessons about American history and confront an underappreciated threat to our constitutional system’s health. The past several years have seen more Americans than ever worry 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’re not going to have a country anymore.” His supporters, many carrying weapons, breached security at the capitol building, caused officials to fear for their lives, and temporarily prevented Congress from certifying electoral votes. The aftermath saw a passionate national argument about whether Trump was criminally liable for his conduct and whether the U.S. Constitution disqualified him from the 2024 election. With the nation’s politics already on knife’s edge, Americans then witnessed Trump narrowly survive an assassin’s bullet and considered whether concerns over President Joseph Biden’s mental capacity justified using the 25th Amendment to remove him. In trying to navigate these constitutional dangers, Americans have also debated a variety of fixes to ensure the stability of our constitutional system. In the conclusion, I ask us to channel some of that attention to our state constitutions, which may be even more likely to fail under pressure than the U.S. Constitution.

I believe this book will benefit legal scholars, historians, judges, and lawyers. But if you are none of those things, this book is just as much for you. Our state constitutions, like the U.S. Constitution, belong to all of us, regardless of background. Whatever your educational level or occupation, you need to understand our full constitutional history to truly appreciate the constitutional dangers facing us. And you have just as important a 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, Sedition: How America’s Constitutional Order Emerged From Violent Crisis, about the history of constitutional crisis in America, is now available. Gadson authored an essay on the North Carolina Constitution for State Court Report’s state constitution series.

Suggested Citation: Marcus Gadson, Book Excerpt: Sedition: How America’s Constitutional Order Emerged from Violent Crisis, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Sep. 19, 2025), https://statecourtreport.org/our-work/analysis-opinion/book-excerpt-sedition-how-americas-constitutional-order-emerged-violent