Who Made the United States Constitution?

51 Pages Posted: 11 Sep 2013 Last revised: 8 Aug 2015

See all articles by Mikolaj Barczentewicz

Mikolaj Barczentewicz

University of Surrey; University of Oxford

Date Written: August 7, 2015

Abstract

This paper answers the question who made the United States Constitution from the perspective of general jurisprudence aided by historical evidence. On my view, to make a constitution qua law one must satisfy two conditions: (1) act intending to make a constitution while viewing oneself as having authority to do so and (2) be de facto authoritative in making a constitution. HLA Hart’s concepts of secondary rules of recognition and of change figure prominently in my account. Beginning with a sketch of the historical process of the making of the Constitution, I then identify the agents involved in it. I observe that on any plausible account the making was a cooperative process involving groups of people and thus I consider the issue of group agency, arguing that groups can act and have intentions when certain conditions are satisfied.

Several candidates for the Constitution’s maker are evaluated in this paper: “We the People”, “the Drafters”, “the Ratifiers”, “the Great Men”, the states and the peoples of the states. The historical material available does not allow for a decisive answer to the question who was the maker. However, I conclude that based on the available evidence it is most compelling to view the thirteen state groups of the Ratifiers as the makers of the Constitution, because they viewed themselves as acting to establish the Constitution with authority delegated by the people of their states and because their act of ratification was, in fact, recognized as establishing the Constitution as law.

Keywords: originalism, constitution, legitimacy, authority, HLA Hart

Suggested Citation

Barczentewicz, Mikolaj, Who Made the United States Constitution? (August 7, 2015). Available at SSRN: https://ssrn.com/abstract=2323497 or http://dx.doi.org/10.2139/ssrn.2323497

Mikolaj Barczentewicz (Contact Author)

University of Surrey ( email )

Guildford
Guildford, Surrey GU2 5XH
United Kingdom

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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