Wednesday, May 27, 2009

Terranova on the history of instructions from state legislatures to federal representatives

The Constitutional Life of Instructions in America is a new by paper by Christopher Terranova, New York University School of Law (JD 2009). Here's the abstract:
In America's early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century, but then died out - a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important reasons for the demise of instructions.
The six-year term length for United States senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming entrenched. Instructions were held in place only by constitutional culture, but even this did not last. After Southern Democrats vigorously used the practice to purge Whigs from the Senate, instructions were indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. The roles had been reversed: Now the states - especially the Southern states - were taking instructions from the federal government. Today, instructions still exist, but
as nonbinding "requests" for action. This new conception of instructions returns us full circle, to James Madison's conception of the proper role of instructions: A right of "the people . . . to express and communicate their wishes" to their representatives.

1 comment:

Mary L. Dudziak said...

I am posting a comment Cornelia Dayton:

A comment for Christopher Terranova: Thank you for reviving interest in this aspect of what you term so aptly our constitutional culture, and for treating the very interesting 19c, political aspects! I’ve always thought of instructions as akin to recall and rotation in office—as concepts and techniques of democratic governance embraced by anti-Federalists (and put forward for inclusion in the bill of rights) that cycle in and out of fashion, particularly at the state level. From one legal historian to another, I’m outing myself as having written a 125-page undergraduate Harvard thesis on instructions, focusing on the colonial, constitution-framing, and early republic periods. This 1979 tome is gathering dust in the Pusey archives and on my own shelves; your article looks quite finished and polished, but if you’d like to consult a copy of my now-ancient research, drop me a line at cornelia.dayton@uconn.edu. It’s a revelation to know that INS are still in use today! Thanks again.