Wednesday, August 26, 2009

Hoyos on the Taming of Constitutional Conventions

Roman J. Hoyos, a Visiting Assistant Professor of Law and History at Duke University Law School and a Ph.D. Candidate in History) at the University of Chicago, has posted From an "Offspring of Revolution” to an “Offspring of Law”: The Invention of a Law of Constitutional Conventions and the Transformation of American Democracy. Here’s the abstract:
In 1867, John A. Jameson published the first legal treatise on constitutional conventions ever written. His primary objective was to bring the constitutional convention within law’s domain, challenging earlier constructions of the convention as sovereign or extra-constitutional. By the 20th century, the reexamination of convention authority sparked by Jameson’s treatise was largely successful. Conventions were no longer seen as sovereign, but merely as another branch of government with a specific delegated task: constitution-drafting. In the process, however, Jameson fundamentally reconceptualized American notions of popular sovereignty. By embodying "the people" the convention had given them the capacity to both act and reason. By reading the people out of the convention, the very institution that had made popular sovereignty viable, Jameson stripped them of the capacity to reason, vesting it instead in the courts. Constitutionalism would no longer be centrally concerned with constitution-making, with enacting; now it would be centered around interpretation. No longer a popular endeavor, it was now the domain of courts.
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