| To begin a recovery of the legal history of legislatures, I explore the history of the constitutional convention as a legal institution. While there have been studies of individual state and regions of nineteenth century constitutional conventions, the convention has generally served as a backdrop for the politics of constitution-making, debates on particular issues, and/or the composition of the convention. The convention appears as a site for deliberation about constitutions, which it certainly was, but as little else. Little attempt has been made to understand the convention as a legal institution, and in this way, it is portrayed as a static or ahistorical institution. A legal history of the constitutional convention, however, reveals an institution almost constantly changing throughout the nineteenth century. And one with important implications for American law, politics, and governance.;The legal history of constitutional conventions reveals important conceptual and institutional changes in American democracy that took place over the course of the nineteenth century. Concepts like revolution, sovereignty, popular sovereignty were transformed formed more than once. These concepts were foundational to the rise of democracy, both in explaining changes that had taken place, and in articulating the basis for further change. The explosive power of these concepts helped to lead to a transformation of the constitutional convention and popular sovereignty in the wake of the sectional crisis, as the most problematic aspects of popular sovereignty and constitutional conventions opened the way for civil war. The use of these particular ideas to frame and explain actions that led to war meant that they would have to be re-conceptualized as the pieces of the Union were put back together. Direct political action in the making of constitutions would, after Reconstruction, no longer play the prominent role as the hallmark of democracy it had before the war, whatever popular discourses progressives later employed. Indeed, the rise of referendum and initiative around the turn of the century, speak to the declining importance of the constitutional convention. Now, plebiscites were understood in terms of elections, not conventions. And without conventions, "the people" lost the power to reason. Through elections the people continued to act, but even if "public opinion" could be construed as reason, it was highly manipulable, and now "inarticulate." With reason disconnected from will, the post-convention era left the people with only action. |
