Diversity in American Federalism

This paper will examine the trends in both the process and outcomes of state-level constitution-writing before the Civil War. It will examine the nature of the records kept by state constitutional conventions and the problems presented by them, and will use this study as an opportunity to ask broader questions about our understanding of American Federalism.

70 state-level constitutions were written in between 1776 and 1861, excluding 6 revised constitutions of succeeding states, and 9 constitutions written by native peoples. The writing or revision of a state constitution became a focus for controversies, not only the fundamental question of slavery, but over issues of both republican theory and practical policy-making in other areas. Shifting and contested understandings of the separation of powers between the branches of government, the relationship of state to town government, the proper control that the people should have over the organs of government, the place of religion in public life, and the desire to fix certain policy questions (especially around issues of finance and debt) all prompted efforts to revise constitutions and to use constitutional texts as a way of entrenching decisions.

Most of these reorganisations of state-level constitutions were conducted under the public gaze rather than taking place in secret, and were highly (indeed, increasingly) documented. Yet the records of the various state-level conventions or legislative revisions of the constitutions pose particular challenges. The publication of journals of debate told incomplete and partial stories, often driven by a desire to memorialize the participation of actors rather than assisting informed understanding of the process itself. Using a series of case-studies, this paper will examine the opportunities for a fuller understanding of the material available to inform the understanding of federal government in this period.