Wednesday, September 24, 2014

Sirico on the Federal Convention as Prognosticator

Louis J. Sirico, Jr., Villanova University School of Law, has posted The Constitutional Convention: Drafting to Charter Future History, which appears in the Georgetown Journal of Law & Public Policy 12 (2014): 157. Here is the abstract:
Just as counterfactual historians ask how past events shape future history, we ask how successful can historical actors be in trying to chart the course of future history. Specifically, the article examines particular decisions that the deputies to the Constitutional Convention made in drafting provisions of the Constitution. With these drafting decisions, the deputies attempted to permit or prevent certain future histories from occurring.

For example, in forbidding ex post facto laws, the deputies were forbidding laws that the international community would have deemed illegitimate, Arguably, they attempted to prevent future Congresses from enacting laws that would have marked the new nation as lawless.

This article offers detailed narratives to illustrate four goals that the Convention’s deputies pursued in making various constitutional drafting decisions: to safeguard against lawlessness, to leave open the door for desirable change, to plan for the growth of an empire, and to conceptualize the nature of the new nation

Examples include the ban on ex post facto laws, the authority to define international law, the Constitution’s accommodations with slavery, the decision to permit the western territories eventually to become states, and the decision not to include the word “national” in the Constitution. The article provides a detailed narrative of the deliberations on each topic at the Constitutional Convention.

The article concludes by offering some insight on the central issue: to what extent can the careful drafting of a constitution enable the drafters to charter the future? It suggests five lessons that derive from the discussion.

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