When Good Lockeans Go Bad: Common Law Courts, the Classical Liberal Tradition, and Resistance to the Modern Administrative State

Abstract

This article describes and analyzes the ideology of the "constitutionalist" movement, a form of contemporary right-wing extremism, as a contemporary folk appropriation of classical liberal thought combined with the American tradition of frontier individualism. The constitutionalist movement has resulted from the conflict of that individualism with the growth of an administrative state. Constitutionalists use a variety of pseudo-legal forms to "exit" from what they view as a corrupted republic, and convene "common law courts" to judge those they view as responsible for the Constitution's demise. Constitutionalists often use Lockean language, describing the current government as having declared war on the people and arguing that they are not bound by legal requirements to which they have not themselves consented. While embraced only by a small group at the fringes of American politics, constitutionalists' ideology, and the pseudo-legal mechanisms they use to absent themselves from the social contract, demonstrates the incompatibility of social contract theory and radical individualism.