The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth Century West
The debates of nine western constitutional conventions between 1849 and 1889 provide considerable evidence that the focus on the Federal constitution as the exemplar of American constitutionalism and constitution-making is misplaced. These conventions took place in seven states: California (1849 and 1878), Oregon (1857), Nevada (1864), South Dakota (1885 and 1889), Wyoming (1889), Idaho (1889), and North Dakota (1889). The debates of those conventions offer insight into how and why state constitutions became much longer than the Federal constitution, the perceived benefits of recurring constitutional revision, and Americans creativity in constitutional borrowing in the formation of state constitutions. The growing length of nineteenth-century constitutions reflected the delegates' changing understanding of the purpose of constitutions. Delegates agreed that the nature and object of constitutions extended beyond fundamental principles to what they called constitutional legislation. Delegates willingly assumed an institutional role that occasionally supplanted the ordinary legislature. They believed that the central purpose of constitutions was to constrain the powers of the government and the legislature in particular. Thus, the collective experience of nineteenth-century constitution-making saw delegates voicing the theoretical legitimacy of inserting greater detail in constitutions in order to achieve sufficient control by the people. Many delegates felt that constitutional revision was part of an ongoing process. Specifically, delegates viewed the nature of constitution-making as a progressive enterprise requiring a readjustment of past practices to conform to present requirements. Progressive constitutional development underscored the importance of building on earlier concepts and practices so as to create ever more sophisticated governmental structures. By the late nineteenth-century, delegates expressed an increasingly elaborate sense of the scientific nature of drafting constitutions and that encouraged more frequent constitutional amendment and revision. Western delegates not only knew of the latest innovations in constitution-making, but had access to all the existing state constitutions as models. Despite extensive borrowing, delegates still discussed and wrestled with constitutional ideas in those provisions. Far from being a constraining influence, the multitude of models often presented the challenge of differentiating among options and evaluating the merits of the provisions ultimately selected. What is remarkable is the relatively limited amount of unthinking adoption or mechanical borrowing of constitutional provisions. A detailed examination of how Western states created frames of government dispels the notion that it took place in isolation. The people in the West shaped a culture of constitutionalism through extended debate over constitutional ideas and practices. That shared constitutional understanding provides insights into the wider process and development of American constitutional thought beyond the experience of the Revolutionary generation.
Rutgers Law Journal
Christian G. Fritz,
The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth Century West,
Rutgers Law Journal
Available at: https://digitalrepository.unm.edu/law_facultyscholarship/186