The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West

Abstract

This article reexamines the long-standing assumption that American constitutional history and theory is naturally understood through the lens of the Federal Constitution, with the natural consequence of the neglect of the state constitutional experience. The emphasis on the Federal Constitution stems from a belief that it represents the most authentic source, and the most meaningful expression, of written constitutions in America. That conclusion -- with its concomitant justification for neglecting state constitution-making -- follows from three interrelated but highly questionable assumptions. The first is that the Federal Constitution is the paradigm of written constitutions. The second is that state constitution-making has largely been an uncreative, unthinking process of borrowing constitutional provisions from the Federal Constitution and other states. The third assumption is that the critical thinking about constitutions initiated by the American Revolution culminated in the formation of the Federal Constitution. Collectively, these three assumptions have made the Federal Constitution the standard against which all other constitutions are measured, and have dismissed nineteenth-century state constitution making as largely irrelevant to an American constitutional tradition.

This Article first examines how these three assumptions arise and then challenges their validity in the context of nineteenth-century constitution-making in the American West. The reported debates from nineteenth-century constitutional conventions in the American West reveal much about how delegates approached and performed their duties as constitution-makers as well as the delegates' struggles with the theoretical underpinnings of republican governments. From their perspective, the unquestioned assumptions associated with the present-day emphasis on the Federal Constitution move to the background and the tradition of state constitution-making takes its proper place in the foreground of the American constitutional tradition.

Keywords: American Constitutional History and Theory, Constitutionalism, State Constitutions, Federal Constitution, American Constitutional Tradition, Constitution-Making, Constitutional Revision, State Constitution-Making, Written Constitutions, Nineteenth Century American West, Constitutional Convention Deb