Friday, August 5, 2016

Graber on State Constitutions as National Constitutions

Mark Graber, University of Maryland  Francis King Carey School of Law, has posted State Constitutions as National Constitutions, which is forthcoming in the Arkansas Law Review:
Practice trumped theory on the precise status of newly independent states when Americans drafted and ratified early state constitutional documents. General agreement appears to exist that the Continental Congress was empowered to conduct the Revolution and make foreign alliances, while the states were empowered to regulate internal police matters. State politicians during the time between the drafting of the Declaration of Independence and the ratification of the federal Constitution, however, consistently undertheorized the basis of the distinction between internal and external affairs, at least when framing official state constitutional documents. 1770s and 1780s pamphleteers and essayists frequently expounded on the proper relationships between the periphery and core, but those responsible for early state constitutions did not adopt any available understanding of federalism in a uniform or clear matter. Broad statements on theory were either ambiguous or conflicting. Some provisions in early state constitutions indicated that the United States was becoming, or was, a confederated union composed of independent, sovereign states. Others evince a more consolidated regime.

The best evidence suggests that under the pressure of time and circumstances, those responsible for state constitutions felt little need to reach agreement or even think deeply about the theoretical foundations of the federal-state relationship when they agreed on the immediate practical division of labor before them. The state constitutional response, or lack thereof, to the ratification of the federal Constitution suggests that Americans reached no greater consensus on the location of ultimate sovereignty in 1788, when the Constitution was ratified, or in 1791, when all states ratified the Constitution.

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