Saturday, 3 March 2012

Pre-Constitutional Extra-legality: Libya v. South Carolina


Top floor of the Old Exchange Building in Charleston, where
the General Assembly and Provincial Congress met, circa 1774-1776.

February 24 marked the one-year anniversary of the convening of Libya's National Transition Council (NTC).  Members derived in somewhat representative fashion from various cities across Libya.  They convened roughly ten days after a riot in Benghazi ignited opposition forces in a revolution that ended eight months later in the fall of last year.  In light of last month's citizen raid on NTC headquarters, the council is currently contemplating how to quickly yet thoughtfully fulfill its self-imposed mandate to host elections for an interim government that would appoint a constituent convention to write a Constitution and host elections for a permanent parliament. 

I have been considering pre-constitutional extra-legality such as has been seen in Libya since the formation of the NTC over the last two weeks while in the bowels of South Carolinian archives researching the constitutional history of the state.  

As I discussed a bit in the last postConstitution-making in a new regime is an inherently extra-legal process as doing such things require an overthrow of a legal system.  One cannot write a constitution for a newly (or newly claimed) independent regime by following domestic law.  This is as true for Libya in 2011-2012 as it was for South Carolina in 1773-1776. 


South Carolina had an incredible amount of pre-constitutional extra-legal (as opposed to illegal, in defiance of law) history.  As early as 1773, citizens of South Carolina--largely from it's "low country," or lands bordering the Atlantic Ocean--met in near-spontaneous assemblies to coordinate opposition to a tax on tea (the same tea tax that prompted a certain party in Boston).  In January of 1774, this General Meeting appointed a General Committee, designed to oversee affairs for a time and call future General Meetings and eventually to enforce the resolutions of the General Meeting.  Elections for General Meeting delegates were held in almost all parishes (yes, as in Anglican--the irony is glaring) and in July of 1774, these delegates met to create a Provincial Congress and elect delegates to the first Continental Congress.  

By September of 1775 when South Carolina Royal Governor William Campbell fled to a ship anchored in Charleston harbor, the Provincial Congress had already met for two sessions and quickly assumed official control of the diminishing remains of Royal government.  In March of the following year, when a constitution was written, the Provincial Congress "metamorphosed in the twinkling of an eye into a General Assembly, from whence a President & Commander in chief, a Vice President & Privy Council, a Legislative Council & divers Offices of State have been chosen by Ballot, these will begin to Act this very day in their respective spheres, & Government will again move in better form & order than we have seen in this Colony for many Years past..."  (Henry Laurens to John Laurens, March 28, 1776)

All of this extra-legal legality occurred months before Independence was declared (it was August before news of Independence reached Charleston), and certainly months before any shots were fired in South Carolina at Fort Moutlrie June 28, 1776.  

The progression from extra-legality to constitutional legality seemed startling to one of the leading members of the Assembly, yet surprising to the historian (yours truly) for its conservativism.  Perhaps this is because the body meeting had such a very long pre-constitutional and even pre-revolution history, and that history proffered the necessary extra-legal experience to make such a smooth transition.

I hope the pre-constitutional (unfortunately, because Qaddafi's regime did not allow freedom of assembly, there was no opportunity for pre-revolutionary) extra-legal experience of the NTC will prove similarly beneficial to a smooth constitutional transition. 

1 comment:

  1. Nicely written. I find that most Americans, even those with a keen interest in American history, often are not aware of the constitutional traditions and experiences that the Framing generation had leading up to, and certainly shaping, the events in Philadelphia in 1787.

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