“Taking Rights by Any Means Necessary:” Prefigurative Politics, Constitutional Law, and the Revolutionary Aspirations of the Black Panther Party, 1966-1971

Willa Sachs, Yale University

This article examines the role of constitutional law in shaping the political identity, platform, and protest strategies of the Black Panther Party. Through an examination of three protest strategies employed throughout the BPP’s trajectory – police patrols, mock “people’s trials,” and the symbolic enactment of “constitutional conventions” – I argue that the Panthers ideologically repurposed the Constitution as a tool of revolution. Citing Lenin’s indictments of “bourgeois democracy,” leaders of the Party argued that oppressed people’s basic democratic and human rights promised under the Constitution would remain fundamentally inaccessible until socialism was established through revolution. Throughout their protests, I demonstrate, BPP activists performatively enacted a post-revolutionary socialist world in which full access to their rights would be granted. Legal consciousness scholars have overlooked these insights about how activists integrate prefigurative politics, revolutionary praxis, and constitutional law—in large part because the law and social movements field more broadly gives little attention to Black radicalism. The operating assumption within legal consciousness scholarship is that even as activists challenge the state’s unequal distribution of rights and resources, they do not question the legitimacy of the state itself. In this line of thinking, when activists invoke the Constitution, they are implicitly exhibiting deference, not resistance, to the rule of law and liberal legalism. Far from demonstrating acquiescence, the Panthers sought out the dissolution of the liberal state. Even as they understood legal institutions as inherently racist and capitalistic, they exhibited aspirational understandings about law as a socialist ideal. Constitutional rights, I argue, thus represent powerful cultural conventions that not only transcend official interpretations and institutions, but the parameters of the state itself. Legal consciousness scholars’ myopic emphasis on how state hegemony precludes visions of radically different socio-legal arrangements, I argue, overlooks these insights into how radical social movements conceptualize law, resistance, and social change.

No extended abstract or paper available

 Presented in Session 60. Crime, Justice and the Law