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Toler, Lorianne Updike --- "First constitutions: American procedural influence" [2019] ELECD 2425; in Landau, David; Lerner, Hanna (eds), "Comparative Constitution Making" (Edward Elgar Publishing, 2019) 384

Book Title: Comparative Constitution Making

Editor(s): Landau, David; Lerner, Hanna

Publisher: Edward Elgar Publishing

Section: Chapter 18

Section Title: First constitutions: American procedural influence

Author(s): Toler, Lorianne Updike

Number of pages: 24

Abstract/Description:

Constitution writing was invented by Americans, whose newly united colonies-cum-states needed new forms of government once independence from Britain was declared (and sometimes before) in 1776. Between 1776 and 1787 when the federal document was signed and sent out for ratification, U.S. constitution-writing procedural ideology matured and was, in its final form, able to translate the theory of popular sovereignty-placing the loci of supreme, sovereign power to organize their own government in the hands of the people-into political and constitutional practice. This maturation was accomplished through six constitution-writing innovations, many of which were proposed by the most democratic elements of society themselves, all stemming from the basic belief that the people were sovereign: 1) special elections for the drafting body, 2) ratifying the final text, 3) allowing direct popular participation in drafting, 4) establishing a separate constitution-drafting body, 5) supermajoritarian or consensus decision-making, and 6) a legalism wherein the process became a proto-constitution for its drafters and transitional actors. Strikingly, this mature constitutional procedural ideology presages modern standards that find root in African constitution-building in the 1990s. This chapter provides partial explanation for the two hundred year gap in constitution-writing norms implementing constitutional popular sovereignty. In effect, while the idea of writing a constitution was successfully transmitted to Europe in the late 18th century, its unwritten companion of normative procedural practice did not. The reasons for this failure include networks of chance, the spread of premature ideology, dominant military power, and bad manners.