Uncovering the Unwritten Constitution

On ‘Common Law,’ Professor Farah Peterson Explores How Boston Tea Party Protests Revealed Something Unexpected
Farah Peterson

Professor Farah Peterson’s latest paper, “Constitutionalism in Unexpected Places,” finds evidence of constitutional ideas that never made it into the written document. Photo by Mary Wood

March 31, 2020

When colonists dressed up as Native Americans to protest for economic rights at the Boston Tea Party in 1773, the event was a constitutional protest as well — more than a decade before the Constitution was even drafted.  

As University of Virginia School of Law professor Farah Peterson explains on the latest episode of “Common Law,” the mob demonstration became part of a long tradition of using Indian dress and symbolism to fight for rights as Americans understood them through unwritten norms and practices.  

Peterson explores the practice, which continued for generations after the Revolutionary War, in her forthcoming Virginia Law Review paper, “Constitutionalism in Unexpected Places.” The Americans’ ideas about rights were part of an unwritten constitution that was sometimes at odds with the written Constitution created at the end of the war, Peterson argues. 

“One of the things that the Indian costuming expressed was the continuation of those other ideas,” Peterson said, “the ideas that had not been included in the written document.” 

This season of “Common Law,” a UVA Law podcast hosted by Dean Risa Goluboff and Vice Dean Leslie Kendrick ’06, is focusing on times when law changed the world. 

Peterson, who holds a Ph.D. in American history from Princeton University as well as a J.D. from Yale Law School, is a legal historian who focuses on statutory interpretation.  

“Just because Americans wrote a constitution down did not mean that they could, overnight, discard a lifetime of experience as citizens of an unwritten constitution,” she said. 

Both elites and regular Americans “believed that the written project was additive; it was not replacing the unwritten constitution of their forefathers.” 

Peterson’s paper traces diverging cultural opinion about what the unwritten constitution means. For example, some colonists who fought in the war but who didn’t own property were unhappy that they didn’t gain the right to vote in the new Constitution. 

“The people who were left out continued to express themselves in their ancient ways, including by mobbing in the streets and dressing up in these carnivalesque costumes and using the performance of rights and rights-bearing symbols to express themselves legally and constitutionally,” Peterson says. 

Peterson elaborates on other rights Americans thought they had, and the hosts also discuss the implications of white Americans dressing in Indian garb, and how eventual expansion of the right to vote changed the practice in some ways. 

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular places to listen to podcasts, including devices like Amazon Alexa. This episode was recorded at the Virginia Quarterly Review, and produced by Sydney Halleman and Tony Field. 

For more on the show, visit commonlawpodcast.com or Twitter at @CommonLawUVA

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