Friday, 25 May 2012

A Constitution in a Hurry

According to a timetable announced 10 August of last year, the Libyan constitution must be written within three months of the formulation of a national assembly.  With an election date of 19 June approaching in less than a month away, the Libyan constitution will be written within the next four months.

Although there is some doubt as to whether elections will actually happen 19 June, the process as set underscores angst over belabored transitional periods.

Yet as Tom Ginsburg pointed out in an article appearing in the Chicago Tribune last October, such a tight timeframe may not provide adequate time for the Libyan constitutional process to allow tribal groups to come together and work out real differences.

Ginsburg alludes to "studies" of other constitutions demonstrating more time is necessary to allow all factions to be heard and to allocate enough attention to detail.  He cites the Iraqi Constitution as an example of what not to do.

Although it is important to capture constitutional moments post-conflict while there is consensus on many issues (Hungary is another good example of what not to do there), Ginsburg I believe is right.  Yet as I wondered in a comment to the article (reposted as a blog), does this comparativist's viewpoint also comprehend historical studies, or simply those shallow timelines and constitutions afforded by a political scientists' or even, often, a lawyer's viewpoint from the last 25 years?  I ask because it is only by looking into history's longer lens that we can find constitutions which have been successful over the very long run.  They thereby provide some of the most compelling lessons for constitution-writing today.

Take the Massachusetts Constitution.  It required four years of back-and-forth between constituent cities and the central Massachusetts "General Court," or state assembly to produce a product, authored by John Adams, that would last 200+ years (and counting).  For the US Constitution, depending on one's viewpoint, it took either 13 years to write, from the time of the first meeting of a "national" assembly in Philadelphia's Carpenter's Hall in 1774, or four months during the summer of 1787.

An interesting interchange is worth noting in that first "national" meeting.  It is recorded in John Adam's diary from September 6, 1774 and goes something like the following:

Patrick Henry: Government is dissolved…I am not a Virginian; I am an American…I go upon the supposition that government is at an end…We are in a State of Nature.

John Jay: Could I suppose, that We came to frame an American Constitution, instead of indeavoring [sic] to correct the faults in the old one—I can’t yet think that all Government is at an End.  The Measure of arbitrary Power is not full, and I think it must run over, before We undertake to frame a new Constitution.[1]

Although a national charter was not issued for another seven years (in the form of the Articles of Confederation), almost from this point, discussions about constitutions began to ruminate within and among the colonies.  Adams did much within Congress to press the issue of re-writing state constitutions, and Tom Pain brought the issue to a head on January 10, 1776 with the publication of Common Sense, calling for a new constitution.  Constitution-writing among the states began in 1776 five days before the issuance of Paine's fiery pamphlet. 

With these facts before us, we would be hard pressed to say that the US Constitution was written in four months, one of the shorter time frames provided in history for constitution-creation.

Another eighteenth-century constitution that yet inspires patriotism is the Polish Constitution of 1793.  Then there is the Norwegian Constitution of 1814, a document still in force.  What were the creation time-periods for these revered documents?  

Such historical questions and case studies can inform discussion over the Libyan constitution-writing process, and I encourage Prof. Ginsburg and other constitutional comparativists to consider them in their prescriptions for successful democratic transitions in Libya and elsewhere.

[1] John Adam’s Diary (September 6, 1774), quoted in Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 40 (Chapel Hill: University of North Carolina Press, 1980).

Thursday, 17 May 2012

When Concord Invented the Constitutional Convention

In my research on state (as in, the American states) constitutional procedure between 1776 and 1780, I came across this newspaper article in the Boston Evening Transcript for July 3, 1917 sharing the documentary history of the inception of the idea for a constitutional convention (called a constituent assembly internationally).  Such an idea finally came to fruition in 1779, when Massachusetts held the first constitutional convention wherein John Adams wrote their constitution.

I find it fascinating that the reasons for separating a convention from the legislature for purposes of creating a constitution were clear to these eighteenth century artisans but not at all clear to political scientists today - a testament to the role history *should* play in comparative constitutionalism today.

I struggled to find this document, so I thought I'd ease the research pain of others by providing the text in full here.  Some day next year, it will be provided on along with a picture of the original.

Boston Evening Transcript
July 3, 1917, Part Two

Roger Sherman (I'm sure he's a descendant of the original Roger Sherman, no?) Hoar, "When Concord Invented the Constitutional Convention"

Constitutional conventions are now such a common affair that the people of Massachusetts are today viewing with perfect equanimity the presence of one in their midst. [same page announced the Mass constitution  convention of 1917)  Yet a century and a half ago such conventions were entirey unknown to the world.  Historians are gradually narrowing the search to determine who first originated the idea.

The invention is usually credited to a mass meeting held in Hanover, New Hampshire, in June, 1777, just as the invention of the telegraph is usually credited to Morse, and the opening of the Revolutionary War is usually credited to the town of Lexington; whereas all three ought really to be ascribed to Concord, Massachusetts.  The true facts with regard to the telegraph and the fight at the North Bridge are generally known to historians, but is has only just been discovered that Concord invented the Constitutional Convention as well.

Walter Fairleigh Dodd, writing in 1910 as a result of his researches at Johns Hopkins University, pointed out that although many of the early constitutions of the American States were trained by bodies calling themselves conventions, yet these bodies were in some instances legislatures attempting to frame constitutions, and in others conventions exercising legislative powers.  In other words, they not only framed constitutions but also, with two exceptions, served as the regular governing bodies of their respective States.  The same may be said of the various European precedents, notably those of the French Revolutions, and the two in England during the seventeenth century.  Earlier conventions, such as the one which framed Magna Charta at Runnymede in 1213, were not representative bodies.
Reverting to the conventions of the American Revolution, we find that only two States, namely New Hampshire in 1778 and 1781-83, and Massachusetts in 1779-80, held Constitutional Conventions within the modern meaning of the term, i.e., representative bodies called for the sole purpose of framing fundamental law.

Dodd gives to the towns of the New Hampshire grants, meeting in Hanover in June, 1777, the credit of originating the convention idea; but to the town of Concord, Massachusetts, belongs the honor of antedating the towns of the Ne Hampshire grants.

It happened this way.  The Massachusetts legislature of 1776, being desirous to frame a constitution for the State sought the permission of the various constituent towns.  Many of these objected on the ground that no constitution was needed, and a few because they mistrusted the personnel of the then legislature.  But Concord was the first town to lay down the principle that, although a constitution was needed, the legislature was not the proper body to frame it.  The Concord protest appears as document 182 in book 156 of the archives at the State House.  Through the courtesy of William Wheeler,  Esq., delegate from Concord, a facsimile copy will be presented to every member of the present convention by the Commission to Compile Information and Data.

This document represents the vote of a town-meeting held in Oct. 21, 1776, and thus antedates the Hanover meeting by about eight months. 

Turning to the original minutes of the Concord meeting, which are still preserved in the vaults of the old Town Hall on Liberty Square in Concord, we find that at a meeting held Oct. 1, 1776, to consider the proposal of the Legislature, the town appointed a committee of five to draw up a reply. 

These five were Ephraim Wood, Col. James Barrett, James Barrett, Esq., Col. John Buttrick, and Nathan Bond.  Which of them originated this fundamental idea, which has developed to such importance in this country, will probably never be known.  They were all interesting an prominent characters, any one of whom would have been capable of its authorship.

The chairman, Ephraim Wood, was a shoemaker by profession.  He was born in 1783.  He was tall and erect, weighted 250 pounds and had a 24-inch calf.  In 1771 he was chosen chairman of the selectmen, town clerk, assessor and overseer of the poor, and was subsequently reelected to all these offices seventeen times.  He frequently served as moderator of town meeting.  IN 1785 he was appointed associate judge of common pleas, and in 1787 was promoted to be judge of that court, which position he held until the court was abolished in 1811.

In 1773 he was a member of the committee which drew up the protest on the tax on tea.  He was a member of every committee on correspondence from 1776 to 1783, and in 1776 was chairman of the couty committee of these committees.  In 1779, when his convention idea had born fruit, he represented Concord in the convention which wrote our present constitution.  He married the widow of James Barrett, Esq. one of his associates on the committee which we are discussing.  In 1814 he died as a result of a peculiar accident.  One of his cows kicked him, paralysis of the throat set in, and he died of starvation.

Colonel James Barrett was the oldest member of the committee, being sixty-six.  He was doubtless chosen because of the fact that he was then the twon’s representative in the Legislature, having served since 1768, and serving until 1777.  He was also a delegate to many of the State and county conventions of the period.  When the Minute Men were organized in March, 1775, he had been chosen a colonel, and so was in supreme command at the Battle of Concord on April 19.

On that day, in his capacity as superintendent of the military stores of the colony (Concord being then the capital of the Revolutionary forces), he had been very busy concealing these sotres, and so escaped arrest as a traitor by a posse of British soldiers which was sent to his house.  He gave the command which sent the Colonial troops down to the right at the Bridge, but his subordinate, Major Buttrick, actually led the troops and ordered the firing of “the shot heard round the world. Colonel Barrett died in 1779 and his widow married his colleage Wood

Colonel John Buttrick of the committee was born in 1731.  He also was a farmer.  His farm overlooked the battlefield to which he led his troops on April 19, 1773.  It was he who as a major in command at the North Bridge on that day, jumped with both feet off the ground and uttered the historic words, “Fire, fellow soldiers: for God’s sake, fire!”  which resulted in “the short heard round the world.”  He was a member of all the annual committees of correspondence, except the first in 1776 and the last of 1783.  He died in 1791.

Of Nathan Pond, the fifth member of the committee, not so much is known.  He was born in 1752, making him twenty-four and thus the youngest member of the committee.  He was the only college man on it, being a graduate of the Harvard class of 1772.  After the war he moved to Botston and took up the business of merchant, dying there in 1816.

No one has yet discovered just which of these five interesting characters invented the Constitutional Convention.  The meeting of Oct. 1, 1776, at which they were appointed, adjourned to Oct. 21, at which date they made their report to a ‘very full town meeting,” which, adopted it unanimously.
The record of this meeting, in the handwriting of Ephraim Wood, reads as follows:

At a meeting of the Inhabitants of the Town of Concord being free and Twentyone years of age and upward, upon adjournment on the twentyfirst Day of October 1776.
Ephraim Wood Jur being Moderator

Voted unanimously that the Present House of Representatives is not a proper Body to form a Constitution for this State

And Voted to Chuse a Committee of five men to make answer to the Question Propsed by the House of Representatives of this State, and to Give the Reasons why the Twon thinks them not a suitable body for that Purpas the persons following was Chosen the Comtee above mentioned viz Ephraim Wood Junr. Mr. Nathan Bond. Col. James Barrett, Col. John Buttrick, and James Barrett Esqr.
and the Committee Reported the following Draft which being Read several times over for Consideration it then was Read Resolve by Resolve and accepted unanimously in a very full Town meeting—the Reason are as followes—

Resolved 1st that this State being at Present destitute of a properly established form of Government, it is absolutely necessary that one should be emmediately [sic] formed and established

Resolved secondly that the supreme Legislative, Either in their proper capacity or in Joint Committee are by no means a Body Proper to form & Establish a Constitution of form of Government for Reasones [sic] following viz—first Because we conceive that Constitution, in its proper idea intends a system of principal sestablished to secure the subject in the Possession of, and enjoyment of their Rights & Privileges against any encrouchment [sic]of the Governing Part.  Secondly Because the same Body that forms a Constitution have of Consequence a power to alter it—thirdly Because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encrouchment of the Governing part on any or on all their Rights and Privileges.

Resolved thirdly that it appears to this Town highly expidient that a Convention or Congress be emmediately chosen to form and establish a Constitution; by the Inhabitants of the Respective Towns in this State being free and Twentyone years and upward, in Proportion as the Representatives of this State were formerly chosen; the Convention or Congress not to consist of a greater number than the house of assembly of this State heretofore might consist of, except that Each Town & District shall have Liberty to send one Representative; or otherwise as shall appear meet to the Inhabitants of this State in General

Resolve 4ly.  That when the Convention or Congress have formed a Constitution, they adjourn for a short time, and Publish their Proposed Constitution, for the Inspection and Remarks of the Inhabitants of this State—

Resolved 5ly.  That the Honble. House of assembly of this State be Desired to recommend it to the Inhabitants of this State to Proceed to Chuse a Convention, or Congress for the Purpas above mentioned as soon as possible

Singed by the order of the Committee Ephraim Wood Ju Chairman
and the meeting was Desolved by the Moderator—

The resolution itself, also in Wood’s handwriting, is the historic document which shaped the views of Massachusetts and New Hampshire, so that these two States gave to the world the Constitutional Convention as we know it today.

It is immaterial that the Legislature disregarded this advice of the town of Concord, and submitted a Constitution in 1778; for the Conord idea spread, and the people rejected this Constitution largely because it was framed in violation of the fundamental principles enunciated by Concord.  Concord itself cast one hundred and eleven votes against it and none in its favor.

In 1779 the Concord idea bore fruit, and our present Constitution was drafted by a Convention called and held in the manner first suggested by Ephraim Wood and his associates.