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Working title:

Semi-Federalism, Multi-Stage Constituent Process, and Diffused Popular Sovereignty:

Te Principles and !mplications of te Making of "#$% Constitution in Massacusetts

Paper su&mitted to

'%"(-'%") Penn Program on Democracy, Citi*ensip, and Constitutionalism+s

raduate Worksop Series

y

.an Smolenski

PD Student, Politics Department

Te /e0 Scool for Social 1esearc

T2!S !S 3 D13FT F41 T25 P31!T!CP3/TS 4F T25 W416S24P

P753S5 D4 /4T C!T5 41 C!1C873T5 W!T248T 38T2419S P51M!SS!4/

C4MM5/TS 315 W57C4M5

"

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1. Introduction

2arry 3 Cusing descri&ed te "#$% Constitution of te Common0ealt of Massacusetts as te

last of te revolutionary constitutions produced in te 0ake of te 3merican !ndependence War

;save te one of /e0 2ampsire 0ic 0as imitated after Massacusetts< and te first of te

modern constitutions"!ts distinct modern caracter consisted in its coerent and tougt-troug

structure ;and not a mere collection of more or less coerent provisions

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paper ! 0ould like to suggest an alternative interpretation: Massacusetts Constitution confronts

us 0it a route not taken, tat is, 0it a democratic constitution making process caracteri*ed &y

elements and principles 0ic sould callenge our understanding of popular sovereignty and

te 0ill of te people, te concepts fundamental for democratic teory and constitutionalism

More specifically, traditionally understood, te people is a unitary macrosu&=ect and its sovereign

0ill is manifested instantaneously as a decision: te people is sovereign &ecause it imposes its

0ill) Many ave pointed out tat tis understanding eiter logically implies te necessity of

unanimity or reIuires acceptance of a fact tat it is al0ays a part tat imposes its 0ill on te

0ole#For tis reasons, suc understanding of popular sovereignty as &een freIuently =udged

as unrealistic and dismissed entirely and considered a fallacy, $or treated as a fiction 0ic,

noneteless, can &e used as a tool in te process of democrati*ation Eet, te Massacusetts

Constitution 0as a product of an e?traordinary constitution making process > e?traordinary to

te e?tent tat even 5dmund Morgan, igly skeptical of te sovereignty of te people, stated

tat Ate Massacusetts constitution could &e said, 0it more plausi&ility tan any oter, to &e an

act of te sovereign peopleB"%iven te centrality of te concepts of popular sovereignty and

) Tis position is eld, among oters, &y tree great political tinkers, .ean-.acIues 1ousseau, 5mmanuel-.osep

Sieyes, and Carl Scmitt ;different as tey are

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te 0ill of te people to democratic teory,""tey are 0ort saving !n suc a situation, ! &elieve,

instead of solving logical parado?es on solely conceptual level, it is useful to reflect on te

empirical case to revise and refine te concepts

"#$% Constitution of Massacusetts 0as a product of te convention 0ic took place in very

specific circumstances of virtually non-e?istent legitimacy of te old regime and difficult times

of te revolutionary 0ar against te ritis 3 Convention as a type of constitution making is a

peculiarly 3merican invention !t is caracteri*ed, among oter tings, &y dou&le differentiation

&et0een constitution making and normal legislation, multiplicity of stages of te process, and

lack of an organ 0ic can make claims to em&ody popular sovereignty"' Te process of

constitution making in Massacusetts conformed to tis ideal-typical caracteri*ation, o0ever,

it departed from te caracteristic of te passivity of te last stage of constitution making:"@te

last stage involved not only simple ratification of te 0ole draft &ut, al&eit largely ignored,

suggestions for canges 3lso, its crucial part 0as te e?istence of te multiplicity of actors

involved in te process of constitution making !n tis paper ! argue tat tis departure from te

ideal-typical caracteri*ation is not accidental istorical contingency &ut rater internal to te

logic of te Massacusetts constitution, making te process distinct from ideal-typical

Convention Terefore, ! argue tat Massacusetts constitution making process is not an

AimperfectB Convention, &ut rater a Convention governed &y sligtly different principles > a

Convention in te Iuasi-federal setting ! argue tat tis process and principles governing it ave

implications for our tinking a&out popular sovereignty and te 0ill of te people

"" 4n te intimate relation &et0een democracy and popular sovereignty, see: 3ndreas 6alyvas, APopular

Sovereignty, Democracy, and te Constituent Po0er,B Constellations"', no ' ;'%%(

"' See: 3rato, AConventions, Constituent 3ssem&lies, and 1ound Ta&les,B "$(

"@ !&id, "$>"$(

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Teori*ation of te empirical case of te "#$% Massacusetts constitution making in "##-"#$%

reIuires &reaking do0n of te case into its elements and principles Tis, in turn, reIuires

separation, on te one and, &et0een istorical contingencies and necessary preconditions of tis

particular instantiation of te constitution making process, and, on te oter, &et0een, contingent

events and te elements of te process !n order to complete my task ! proceed from te

description and analysis of te empirical case to dra0 teoretical implications ! analy*e te

istorical process of te creation of te "#$% Constitution of te Common0ealt of

Massacusetts, and &y a&stracting from istorical contingencies, ! ela&orate on te particular

model of constitution making tat 0as enacted in Massacusetts 1eflecting on it furter, !

analy*e its preconditions and separate te elements of te model from its principles 7astly, !

dra0 conclusions and teoretical implications from "#$% Massacusetts Constitution making for

our tinking a&out popular sovereignty and te Will of te People

2. Historical background

efore, o0ever, ! analy*e te process itself, it is necessary to provide some istorical

conte?tuali*ation "##-"#$% constitution making process in Massacusetts follo0ed an earlier,

"###-"##$ failed attempt to draft a constitution for te state &y te eneral Court, a regular

legislative &ody esta&lised &y te colonial carter Tis in turn 0as an effect of a longer process

in 0ic colonial system of government lost legitimacy entirely

Delegitimation of te colonial system of government 0as an effect of a longer conflict &et0een

te Cro0n represented &y te governor and is council on te one and, and te provincial

legislative representing te citi*ens of te colony of Massacusetts on te oter Te to0ns of

(

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Massacusetts, and especially oston to0n meeting, te cradle of anti-Cro0n radicalism,

supported te assem&ly against te Cro0n"During te conflict, te spirit of defiance and

resistance spread to oter to0ns 3lready "# years &efore te out&reak of te !ndependence War,

in "#)$ te governor of te colony of te Massacusetts ay, Sir Francis ernard, dissolved te

eneral Court and later refused to call for ne0 one /oneteless, te to0ns took matters in teir

ands and after te oston to0n meeting9s call for convention, tey sent teir representatives

ATe convention9s legitimacy 0as &ased on te understanding tat te to0ns &eind it 0ere

temselves sovereign political unitsB"(To0ns continued cooperation troug te committees of

correspondence, 0ic 0ere pursuing local policies and 0ere responsi&le only to te to0n

meetings")

!n "##, te ritis Parliament passed !ntolera&le 3cts in order to control and punis te

re&ellious colony after te oston Tea PartyH among oters, tose acts canged te constitution

of Massacusetts, and disempo0ered te to0n meetings in particular"#Tis move contradicted

te common sense of te citi*ens of Massacusetts, 0o &elieved tat constitution is not a grant

from te Cro0n &ut a contract &et0een te ruler and te ruled Tis popular &elief 0as inspired

&y teories of Wigs, like 2arrington and 7ocke, 0o advocated repu&lican form of government

and civic independence"$Contrary to te e?pectations of te metropole, te punitive measures

did not strengten te ritis control over te colony, &ut almost completely delegitimi*ed te

" 3llan /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,;/e0 Eork: Te Macmillan

Company, "'

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autority of te office of governor and contri&uted to transfer of autority to to0n meetings "

/e0ly appointed military governor of te colony, eneral Tomas age, attempted to dissolve

te lo0er cam&er of te eneral Court, &ut te 2ouse openly diso&eyed te order Despite te

proi&ition, to0n meetings 0ere eld, even in te vicinity of te royal troopsH te actions of te

ritis Parliament also strengtened te solidarity among to0ns of te colony'% 3 call for

e?tralegal provincial convention appeared'" !n anoter counterproductive attempt to assert

control over Massacusetts, overnor age canceled te call for elections to te eneral Court,

&ut te Court 0as elected noneteless and transformed itself into a Provincial Congress''Te

animosities &et0een te Cro0n and te colonists in Massacusetts culminated in Septem&er

"## in te so-called Suffolk 1esolves, a declaration of te leaders of te to0n of Suffolk calling

for a&olition of te AunconstitutionalB administration of te overnor age '@Te 1esolve 0as

endorsed &y te First Continental Congress te same mont 5ssentially, as a result of tis

struggle, te colony of Massacusetts ad a dual po0er structure and contested autority: te

governor9s administration on te one and, and te Iuasi-federal structure &ottom-up consisting

of to0ns Te to0ns 0ere associated in county-level &odies 0ic organi*ed consumer &oycotts

and assumed policing po0ers'

!n "##(, after te &reakout of te 3merican 1evolutionary War, Massacusetts resumed te ")"

colonial Carter, considering te punitive canges introduced &y te ritis Parliament null and

void Te Provincial Congress 0as considered a legal continuation of te Court 0ile te seat of

" /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, @('% !&id, @(>@)

'" !&id, @#

'' !&id, @$

'@ 3dams, The irst -merican Constitutions, @(

' !&id, @(>@)

#

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te overnor 0as considered vacant'(!n "##) te Continental Congress advised te re&ellious

colonies to adopt constitutions &ased on te autority of te people ')!nitially, te eneral Court

of Massacusetts 0anted to preserve te e?isting Carter arguing tat it satisfies te suggestions

of te Congress'#2o0ever, some of te to0ns demanded a completely ne0 document !n

particular, te to0n of Pittsfield argued in te 7ockean vein, tat constitution is necessary for

legitimate legislation, &ut te a&rogation of te constitution te ritis Cro0n resulted in te

&reaking of te constitutional contract !n effect te old document 0as null and void and all te

po0er and autority returned to civil society First demands for a special convention tat 0ould

draft a ne0 constitution 0ere made already in "##) Tis idea of dou&le differentiation

Aoriginated in te mistrust te to0ns and counties felt to0ard te ouse of representatives and

te council sitting in ostonB'$ Tere 0ere t0o main arguments in favor of dou&le

differentiation Te first one stemmed from te idea tat te constitution is not an ordinary la0

and its task is to protect individuals from te a&uses of po0er &y te government: te creation of

te constitution &y te ordinary legislature 0ould result in a document tat is not a iger la0

and can &e altered &y any su&seIuent legislature' Tis fear of parliamentary sovereignty

Westminster style 0as 0ell =ustified given punitive canges in te colonial Carter introduced &y

te ritis Parliament only t0o years earlier Te second argument 0as &ased on te fear of

factionalism and te vested interests of te drafters: if te drafting &ody is to remain in po0er

after te constitution is adopted, te drafters can eiter introduce provisions &enefitting teir

interests or grant temselves e?cessive po0ers@%Poor erksire county in te 0estern part of

Massacusetts, fearing conservative tendencies among te te ricer ina&itants of te easter part

'( /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, $') 3dams, The irst -merican Constitutions, )@

'# !&id, $)

'$ !&id, )>)(

' !&id, $H see also: /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, "#)

@% /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, "#)

$

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of te colony, demanded also popular ratification of te draft@"

Te second demand 0as onored &ut te first one 0as disregarded and after e?traordinarily

inclusive elections in "###,@'te lo0er cam&er of te eneral Court proceeded 0it te drafting

process of te ne0 constitution !n "##$ te ne0 constitution 0as su&mitted for ratification &y

to0ns, &ut it 0as re=ected &y te over0elming ma=ority of te freemen of Massacusetts >

',%$@ votes 0ere casted in favor of te draft, 0ereas ,#' 0ere against it @@3llan /evins

argues tat te ne0 constitution 0as not a&le to secure support neiter among AconservativesB

0o demanded, among oter tings, inclusion of te &ill of rigts, nor te AradicalsB 0o

veemently opposed te process of te creation of te document@Willie Paul 3dams adds tat

o&=ections included also too e?clusionary electoral rules, uneIual distri&ution of te seats, and

disagreement over te po0ers of te governor@( 3ny0ay, te devastating defeat of te

constitution is ardly surprising given te opposition of te to0ns to te idea of drafting of te

constitution &y te governing &ody@)

3. Drafting the 1780 Constitution

Te process of drafting of te "#$% Constitution of te Common0ealt of Massacusetts gre0

out of tis failure /evins 0rites, tat "##$ document A0as so poor a Constitution tat te

caplain of te 2ouse e?pressed te opinion tat it ad &een drafted 0it te deli&erate purpose

@" !&id, "#(

@' Te property Iualifications for te rigt to vote 0ere suspended tis time: 3dams, The irst -mericanConstitutions, "

@@ /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, "##

@ !&id

@( 3dams, The irst -merican Constitutions, "

@) Morgan,'nventin% the People, '($

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of aving it re=ected, so tat te Carter autorities migt continue in po0erB @# !ndeed, te

missing &ill of rigts and te unaccepta&le process of its drafting 0ere Iuite offensive for

prevailing sensi&ilities of te re&ellious colonists /oneteless, in Fe&ruary of te ne?t year, te

eneral Court proclaimed a resolve, supported later &y more tan t0o tirds of to0ns, asking if

tey desired a constitutional convention carged 0it te task of drafting te constitution iven

te positive ans0er of te ma=ority, te Court called for elections to te convention Te property

Iualifications 0ere suspended as all free male residents of to0ns of te age of '" and over 0ere

allo0ed to vote@$Te same resolve esta&lised rules for ratification of te ne0 constitution > all

free males of age '" and over acting in to0n meetings 0ere supposed to vote on every provision

of te constitutionH te resolve considered te provision accepted if te t0o tirds of tem

accepted it@3s Samuel 5liot Morrison descri&ed it in ""#, te convention A0as elected &y, and

su&mitted its 0ork to, te People, in te 0idest contemporary political sense of tat 0ordB %

Te convention met on Septem&er ", in Ate darkestB period of te 1evolution "ritis eneral

2enry Clinton 0as triumpant in te sout 0ile eneral Wasington 0as stranded &y sickness

and desertion at te &anks of 2udson river Massacusetts troops 0ere =ust defeated &y te

ritis, leaving under control of te Cro0n te territory of Maine east of Peno&scot river Pu&lic

funds 0ere virtually depleted'

Te constitution making process, tat occurred in tese Iuite non-favora&le conditions, ad four

@# /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, "##

@$ Cusing,History of the Transition from Provincial to Commonwealth Government in Massachusetts., !!:''$

@ !&id, !!:''

% Samuel 5lliot Morrison, ATe Struggle over te 3doption of te Constitution of Massacusetts, "#$%,B inProcee!in%s of the Massachusetts Historical #ociety3 4ol. L3 *,*50*,*+;Massacusetts 2istorical Society,

""#

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stages@ Te first stage consisted of te preparation of te first draft of te document &y te

convention specifically elected for tis task efore em&arking on its task of drafting te

constitution, te convention made t0o important moves First, it formally recogni*ed tat it

received its autori*ation from te people of Massacusetts AN!Ot is te opinion of tis

Convention, tat tey ave sufficient autority from te people of te Massacusetts ay to

proceed to te framing a ne0 Constitution of overnment, to &e laid &efore tem agreea&ly to

teir instructionsB( !n oter 0ords, te convention recogni*ed te conditionality of its

legitimacy, implying tat te source of autority rests 0it te people of te Massacusetts

Second, &efore proceeding to te part of te draft concerning te form of government,

convention decided to focus on te ill of 1igts)Te task of drafting 0as delegated to te

committee of tirty, 0ic later delegated it to .ames o0doin, Samuel 3dams, and .on

3dams Te last of tem proved to &e te most influential drafter and theautor of te ill of

1igts#Te second stage 0as te de&ate over te first draft in te convention 4ne of te main

points of contention in tese de&ates considered te electoral rules and representation in te

legislative iven te lack of agreement on te issue, te convention decided to su&mit it to te

people, during te stage of ratification$

Te ratification of te constitution 0as te tird stage 5igteen undred copies of te draft 0ere

distri&uted to to0ns and put up for de&ate clause &y clause during te fourteen 0eeks &et0een

@ Willi Paul 3dams enumerates tree: 3dams, The irst -merican Constitutions, ' ! consider te final step ofratification of te constitution as a separate, fourt stage

Cusing,History of the Transition from Provincial to Commonwealth Government in Massachusetts., !!:'@"

( Massacusetts Constitutional Convention,Journal of the Convention for ramin% a Constitution of Government

for the #tate of Massachusetts )ay: rom the Commencement of Their irst #ession3 #eptember *3 *++,3 to theClose of Their Last #ession3 June *53 *+16;Dutton and Went0ort, Printers to te State, "$@'

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Marc ' and .une #, "#$% Togeter 0it te copies of te draft, te to0ns 0ere provided 0it

te address of te president of te convention, .ames o0doin, 0ic stated tat tey ave

Aundou&ted Ri%htBto accept, re=ect, and introduce revisions and alterations to te draft Te

draft also gave rationale for te provisions of te draft 3ltoug printed press does not give

muc evidence for pu&lic around te draft, at least noting compara&le to te de&ates

surrounding te Federal Constitution,(% te returns, differing greatly in lengt and su&stance,

prove oter0ise("Te to0n meeting of oston, one of te most engaged in te de&ates over te

draft,('issued even a recommendation to close all sops to improve attendance (@During te last

meetings of te convention &efore sending out te draft, it 0as resolved tat te final session of

te convention carged 0it te task of ta&ulation of te votes 0as also allo0ed to introduce

canges into te draft to conform it to te opinion of te t0o tirds(More importantly, o0ever,

te final session 0as in principle a ne0 &ody: its legitimacy 0as rene0ed &ecause te to0ns

could send different representatives to tis session((Tus, altoug it 0as generally recogni*ed

tat te convention ad te final say in te process of ratification,()te convention for te second

time recogni*ed te conditionality of its legitimacy

Te final step of ratification, and at te same time te final stage of te constitution making

process proved to &e difficult 3s mentioned, returns form to0ns differed greatly Some of tem

stated clear yay or nay concerning eiter te 0ole document or a provision and num&er of

Massacusetts Constitutional Convention,Journal of the Convention for ramin% a Constitution of Governmentfor the #tate of Massachusetts )ay, '")

(% Cusing,History of the Transition from Provincial to Commonwealth Government in Massachusetts., !!:')$

(" Morrison, ATe Struggle over te 3doption of te Constitution of Massacusetts, "#$%,B @)

(' !&id, @))(@ /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, "$"

( Massacusetts Constitutional Convention,Journal of the Convention for ramin% a Constitution of Government

for the #tate of Massachusetts )ay, "((

(( !&id, ")

() Morrison, ATe Struggle over te 3doption of te Constitution of Massacusetts, "#$%,B @)#

"'

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casted votes, oter included conditional yay9s 0it specific instructions concerning amending te

contested provisions !n suc a situation, altering te draft Ain suc a manner as may &e agreea&le

to te sentiments of t0o tirds of te voters trougout te StateB(#0as an e?tremely difficult

task Moreover, te difficult istorical circumstances > te reality of revolutionary 0ar and

terri&le financial situation of te state of Massacusetts > prompted te feelings of urgency !n

te 0ords of Samuel 3dams: A/ever 0as a good constitution more needed tan at tis

=unctureB($Te convention delegated te task of ta&ulation of te votes to a special committee,

0ic found it difficult to reconcile differences in returns (!n te end, te convention resorted to

a procedure 0ic 5dmund Morgan eupemistically calls Adu&iousB

)%

Eay votes and yay votes

conditional upon specific canges 0ere counted as votes in favor of te constitution, and tis is

o0 te reIuired t0o tirds ma=ority 0as secured 2o0ever, as /evins notes, A3t least t0o

articles, &y strictly fair count, 0ould not ave ad a t0o-tirds vote, toug tey pro&a&ly ad

more tan alfH &ut te committee reported all as aving te necessary t0o-tirds ma=ority, and

te convention accepted te statementB)"4n .une "(t, at te one to te last meeting of te

convention, te draft 0as read article &y article and after eac clause te representatives 0ere

asked 0eter tey agree tat te people accepted te article 8nsurprisingly, eac article 0as

passed)'!t sould &e noted, tat altoug disregarded, te returns 0it suggestions for canges

anticipated most of te amendments to te Constitution of Massacusetts introduced &efore te

Civil War)@3lso, one of te causes of Says9 1e&ellion in 0estern Massacusetts 0as precisely

(# Massacusetts Constitutional Convention,Journal of the Convention for ramin% a Constitution of Government

for the #tate of Massachusetts )ay, "((($ Samuel 3dams, Iuoted in: Cusing,History of the Transition from Provincial to Commonwealth Government in

Massachusetts., !!:'#@

( !&id, !!:'#

)% Morgan,'nventin% the People, '($)" /evins, The -merican #tates (urin% an! -fter the Revolution *++/0*+1,, "$"

)' Massacusetts Constitutional Convention,Journal of the Convention for ramin% a Constitution of Government

for the #tate of Massachusetts )ay, "$%

)@ Morrison, ATe Struggle over te 3doption of te Constitution of Massacusetts, "#$%,B @)(H /evins, The

-merican #tates (urin% an! -fter the Revolution *++/0*+1,, "$"

"@

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not revising te articles concerning te legislature in accordance 0it te returns from to0ns )

4. Preconditions ele!ents "rinci"les

T0o previous sections provide factual material necessary to reconstruct te preconditions,

elements, and principles of te constitution making process Since, as mentioned, tis process

differs from te ideal-typical caracteri*ation of te model of te Convention, ! ela&orate on te

preconditions, elements, and principles of te Massacusetts constitution making process &y

comparing and contrasting it at times 0it te ideal type Most important differences are te

active role of te last stage of constitution making, tat is te possi&ility to introduce canges

into te draft, and Iuasi-federal setting in 0ic te process of constitution making took place

Precon!itions. 3s mentioned, constitution making process in Massacusetts took place in

difficult istorical circumstances of military conflict and delegitimation of te central autorities

of te state Tere are long-term and sort-term preconditions of te Massacusetts constitution

making Tree long-term preconditions are rooted in te colonial past of Massacusetts Te first

one is te e?istence of te institutionali*ed vi&rant independent civic life in te colony To0n

meetings, inspired &y te radical democratic and repu&lican ideology of te Wigs 0ere te

center of local civic and political life and local self-government Tey actively participated in

provincial politics as places of deli&eration and electionsH tey 0ere cradles of democratic

sentiments stemming from teir internal pluralismH)( tey 0ere places of civic education in

pu&lic matters and pu&lic opinion formation Second precondition is devolution of autority

) Morrison, ATe Struggle over te 3doption of te Constitution of Massacusetts, "#$%,B @$$

)( For e?ample te to0n meeting of oston included 0orkers and sopkeepers, not only te elite See: /evins, The

-merican #tates (urin% an! -fter the Revolution *++/0*+1,, @%

"

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Counterproductive repressive and punitive measures introduced &y te colonial administration

representing te ritis Cro0n and &y te ritis Parliament resulted in delegitimi*ation of te

colonial institutions Te autority 0as transferred to already e?isting lo0er-level institution of

local self-government, te to0ns, 0ic acted self-governing units Te actions of te overnor

and te Parliament against te colonists galvani*ed te opposition and created strong net0orks of

cooperation and communication among te to0ns troug te committees of correspondence, te

tird precondition ! call tis com&ination of tree long-term preconditions AIuasi-federalismB

Tis situation resem&les federal setting &ecause of te multiplicity of self-governing units

independent from te central institutionsH at te same time, o0ever, te people of Massacusetts

felt as mem&ers of a larger polity &ound togeter, legally, institutionally, and affectively

5ssentially, it is a setting of te primacy of te local, &ottom-up self-government over te supra-

local institutions, 0itout legal pluralism implied &y federalism

Te Iuasi-federalist setting contri&uted also to one of te preconditions of te ideal-typical

Convention, ie te continuity of legitimacy Te constitution making process &egan after te

0ar started ranted, Suffolk 1esolves called for 0at amounts to revolution, and some

considered punitive actions of te ritis not only illegal &ut also resulting in te dissolution of

te colonial Carter as a constitution Eet, te &asic institutions of te repu&lican form of

government 0ere functioning, and, more importantly, te to0ns retained teir legitimacy Te

second caracteristic of a ideal-typical Convention is also a sort-term precondition of te

Massacusetts constitution making process: rupture of legality))Te Convention as a kind of

Arevolutionary reformB presumes te failure of attempts to reform of an e?isting form of

)) 3rato, AConventions, Constituent 3ssem&lies, and 1ound Ta&les,B "#(>"#)

"(

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government resulting in te necessity to &reak e?isting legal rules )#!n te case of Massacusetts,

te eneral Court 0as not a&le to preserve te colonial form of government, and later failed to

secure ma=ority for its draft of te constitution &ecause, among oter tings, it disregarded te

demands for constitutional convention Crucially, te calls for constitutional convention came

not from delegates-turned-self-selected drafters, as in te case of te Federal Constitution, &ut

from te to0ns

lements Some of te to0ns insisted tat te convention &e carged only 0it te task of

drafting te constitution Dou&le differentiation is te first element of te Massacusetts

constitution making process, caracteristic also of a ideal-typical Convention Te &ody in

Massacusetts 0as elected in inclusive elections solely for te purpose of drafting and dissolved

after te constitution 0as adopted Te constitution making process consisted of te multiplicity

of stages ;second element

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drafting convention, te to0ns, and te final convention 0ic, &ecause of te rene0ed mandate,

0as in principle ;and in fact, given minor canges among delegates< a ne0 &ody, and special

committees selected &y tose &odies Te second and tird elements com&ine into te Adivision

of constitution making la&orB, carging te first convention 0it te task of drafting, to0ns 0it

de&ating and suggesting revisions, and te final convention 0it introduction of canges ;at least

in principle< and adoption of te constitution Te fourt element is te multiplicity of levels

Te draft 0as prepared &y te constitutional convention elected in national elections, &ut te

to0ns, units of local self-government, to 0om te draft 0as su&mitted for ratification, 0ere

given active role in te process of drafting

Principles Te citi*enry did not play a passive role in Massacusetts constitution making

process Teir task 0as not only to select te representatives 0o 0ould draft te constitution for

tem, &ut also to de&ate it in direct democratic &odies and in informal settings Te suspension of

te property Iualifications for voting and participation in te ratification process suggest an

understanding tat te constitution making process sould &e more inclusive tan so-called

normal politics Citi*ens ad te opportunity to contri&ute to te process indirectly, troug teir

representatives and informal de&ates ;including a limited de&ate in te press

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introduce canges 0ould ave prevented te outrigt re=ection of te draft)$!n te end, tese

suggestions 0ere not taken into accountH also, &efore even te draft 0as su&mitted to te to0ns,

te convention decided not to resu&mitted te canged draft /oneteless, tese decisions, and

te one to disregard te returns, seem to &e contingent, ie resulting from particular istorical

circumstances during 0ic te 0ole process took place: te circumstances of crisis and 0ar )

3s mentioned, mem&ers of te convention felt e?traordinary pressure to adopt te constitution

IuicklyH#%also, in principle noting ruled out te option of resu&mission of te canged draft to

te people Watever te intentions &eind te rules, te process em&odied ;and imperfectly

enacted< te principle of constitutional learning: te Adivision of constitutional la&orB provided

space for plurality of voices and perspectives to &e included in te discussion and alteration of

te draft

5ven if te space for constitutional learning 0as provided for purely pragmatic reasons, it

suggests tat tose 0o convened te convention, and later te convention itself, recogni*ed

teir legitimacy pro&lems Tese pro&lems resulted partly from te legacy of te

;mis

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moves served to soote tis principal legitimacy pro&lem !n oter 0ords, te Massacusetts

constitution making process em&odied te principle of popular sovereignty 7ua constituent

po0er 3ccording to tis principle, legitimacy of every delegated po0er is conditional upon

consent of tose 0o delegated it, or, in oter 0ords, te legitimacy of te constituted is depends

on te consent of te constituent Te autority rests 0it te collective and is never fully

alienated !n oter 0ords, popular sovereignty is in tis case enacted not as a po0er of te

unitary macrosu&=ect to impose commands, &ut as a po0er to create a political form 3gain,

imperfect enactment of tis principle, especially &y disregarding te suggestions for canges in

te draft provided &y to0ns in returns, does not invalidate te principle itself, 0ic as every

principle provides a normative ideal against 0ic te actual process can &e =udged, rater tan

an literal description of te actual process

Morrison states tat in fact t0o-tirds ma=ority for eac article 0as manufactured and from tis

e concludes tat Ait is not far from te trut to state tat te constitution 0as referred to te

people for teir consideration and detailed vote, te consent of t0o-tirds &eing a prereIuisiteH

&ut ratified &y an ad=ourned session of te Convention, 0it a fres popular mandateB#"Tis

interpretation, if correct, undermines te my argument concerning te principle of popular

sovereignty and suggests tat te Adu&iousB procedure of vote ta&ulation amounted to

manifestation of organ sovereignty latent in te Convention form of constitution making

3ltoug tis interpretation rigtly points te imperfections and enactment of te principles of

constitutional learning and popular sovereignty 7ua constituent po0er, it underplays te

importance of te popular autori*ation Witout su&mitting it to to0ns for deli&erations, voting

clause &y clause, and alterations, te draft 0ould most pro&a&ly ave &een re=ected

#" Morrison, ATe Struggle over te 3doption of te Constitution of Massacusetts, "#$%,B @(

"

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3 0ord of e?planation is needed 0y te circumstances of 0ar, referred to in te su&sections

dedicated to te elements and principles of te constitution making process in Massacusetts,

0ere not considered in te su&sections on preconditions Te 0ar undou&tedly contri&uted to

strengtening to0ns against te central administration Te necessity to maintain unity during

te military struggle, feeling of urgency in implementation of a ne0 instrument as soon as

possi&le, com&ined 0it te lack of capacities to impose a constitution using a treat of coercion,

gave te central administration no oter coice &ut to defer to te demands of to0ns Eet, te

revolutionary 0ar is not so muc a precondition of te particular 0ay in 0ic te constitution

making process in Massacusetts developed, &ut, as a moment of profound crisis and strife, it

sould &e seen as a condition of possi&ility of te manifestation of constituent po0er and &y

e?tension of constitution making process !n oter 0ords, revolutionary 0ar is not important for

te constitution making process in Massacusetts as a 0ar, &ut as a moment of crisis Te

particular form of military struggle is a istorical contingency, not a precondition, 0ic,

o0ever, influenced certain already mentioned developments during te constitution making

process, as 0ell as te product of te process > Massacusetts "#$% Constitution ad te

strongest e?ecutive in 3merica at te time#'

#. Diffused "o"ular so$ereignt% and the "rocessual &ill of the Peo"le

!deal-typical Convention does not ave an organ 0ic em&odies popular sovereignty !n te

case of te constitution making process of te Federal Constitution, popular sovereignty 0as

#' !&id, @$

'%

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antinomic, understood alternately in national and federal terms#@!n tis sense it resem&led Carl

Scmitt9s idea of Aundecided seat of sovereigntyB#Eet, as ! argued, Massacusetts constitution

making process enacted te principle of popular sovereignty as constituent po0er Tis, o0ever,

does not mean tat popular sovereignty 0as em&odied in an organ 1ater, ! claim,

Massacusetts constitution making process reIuires retinking of popular sovereignty as diffused

popular sovereignty

Diffused popular sovereignty as to do 0it te spatial aspect of te process and te topology of

it Te spatial aspect refers to Iuasi-federalism To recapitulate, at te eve of te Massacusetts

constitution making, ATe to0ns 0ere, in fact, te several sovereigns of Massacusetts-ayH

teir relation to te eneral Court closely appro?imated tat of te states to te Congress of te

Confederation, 0it te important difference tat tere 0ere not tirteen, &ut almost tree

undred of temB#(Eet, te difference lies in te &onds of pre-e?isting unity among te to0ns of

Massacusetts For e?ample, A3 num&er of o&=ecting to0ns, apparently regarding temselves

distinct &odies politic in teir relation to te state, passed a vote to te effect tat tey 0ould

accept te constitution 0itout teir favorite amendments if t0o-tirds of te people voted soB#)

Morrison du&&ed tese resolutions superfluous since te convention ad not ave any intention

to leave te dissenting to0ns out of te state Eet, e mis=udges te action of te to0ns, since its

meaning it not so muc separatist as unitarian: tese resolutions e?press precisely te pre-

e?isting unity of tese to0ns 0it te rest of te state 3noter e?ample is te action of te

dissenting to0n of Middle&oroug, 0ic, outraged &y te sort period of time given to to0ns

for de&ates over te draft, small num&er of copies distri&uted of te draft distri&uted to to0ns,

#@ 3rato, AConventions, Constituent 3ssem&lies, and 1ound Ta&les,B "$%>"$"

# Scmitt, Constitutional Theory

#( Morrison, ATe Struggle over te 3doption of te Constitution of Massacusetts, "#$%,B @)%

#) !&id, @#

'"

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and alleged vagueness of te provisions of te draft, called for oter to0ns to =oin tem in civil

diso&edience in case te constitution is adopted##Tere 0as no separatist call Tus, in spatial

terms, Massacusetts 0as considered a unity 0it multiplicity of seats of local autority 0ic

only togeter and simultaneously 0ere te &earers of undivided sovereignty Suc a situation

;0ic is only apparently parado?ical< relates to te topology of te constitution making process

0ic involved &ot local centers of autority and a AnationalB representative &ody ;elected &y

individuals, not to0ns

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tranIuility, teir natural rigts, and te &lessings of life te people ave te rigt to alter te

governmentB#Te &ody politic is descri&ed as a Avoluntary association of individualsB and a

Asocial compact, &y 0ic te 0ole people covenants 0it eac citi*en, and eac citi*en 0it

te 0ole people, tat all sall &e governed &y certain la0s for te common goodB$%Moreover,

te people is named as te autor of te constitution$"

Te &ill of rigts recogni*ed tat ;3rticle !< A3ll men are &orn free and eIual, and ave certain

natural, essential, and unaliena&le rigtsB, including te rigt to life and li&erty and to protect

tem, te rigt to property, in sort, te rigt Aof seeking and o&taining teir safety and

appinessB$'!t also recogni*ed rigts to =ustice ;3rticle Q!

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sovereign, and independent stateB$# 3s Willi Paul 3dams notes, te common sense in 3merica at

te time distinguised &et0een popular sovereignty as constituent po0er tat &elonged to te

people, and te Asupreme delegated po0erB, ie te po0er of representatives$$ 3ccordingly,

3rticle introduces distinction &et0een te original po0er tat resides Ain te peopleB, and te

derived po0ers, ie magistrates and officers of government, 0o are vested 0it autority &y te

people and act as teir Asu&stitutes and agents, and are at all times accounta&le to temB$ !n

3rticle !!, it is stated tat Ate people alone ave an incontesti&le, unaliena&le, and indefeasi&le

rigt, to institute governmentH and to reform it, alter, or totally cange te same, 0en teir

protection, safety, prosperity and appiness, reIuire itB

%

Te last 3rticle of te &ill of 1rgts

provides for separation of po0ers &et0een te =udiciary, legislative, and e?ecutive po0ers as

safeguards against tyranny ;3rticle QQQ

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created in te multistage process 0ic involved also many actors Te constitution 0as drafted

&y a responsi&le committee and te de&ated in te conventionH su&seIuently it 0as su&mitted to

to0ns for de&ates Te most popular 0ay of dealing 0it tis task 0as a delegation of

assessment of te draft to te special committee, and deli&eration and voting on its report

3ltoug imperfectly, it enacted te principle of constitutional learning: te draft 0as su&=ect to

te de&ates in direct-democratic and elected-representative &odies, and in principle su&=ect to

cange &efore su&mitted for final acceptance in te convention !f democratic constitution

represents te Will of te People, ten tis Will is not instantaneous &ut processual Constitution

making, is a deli&erative process of te popular 0ill formation, involving contracts, conflicts,

and compromises Te constitution itself, is not, as Carl Scmitt 0anted, a decision of te 0ill of

te constituent su&=ect, &ut te product of te process of formation of te Will of te People

Processual Will of te People involves negotiation &et0een opinions coming from te

multiplicity of loci of pu&lic opinion formation, and merging tem if possi&le into one in te

temporally e?tended process of pu&lic deli&eration !mportantly, te deli&erative process in te

processual 0ill formation as mainly a transformative caracter > it is supposed to transform

individual opinions in ligt of te assumed general interest 4&viously, suc a process 0ill

produce dissenters and tose, 0ose position could not &e incorporated in te dominant opinion,

&ut Will9s legitimacy stems not from it &eing te opinion of all or te 0ill of te true People, &ut

from te process of its formation 3t te same time, it does not ave te sanctity of te

instantaneous Will of te People, as te general 0ill in 1ousseau as, &ut is open to contention

and furter deli&eration

!n tis paper ! analy*ed te "##-"#$% constitution making process in Massacusetts in terms of

its preconditions, elements, and principles ! argued tat its preconditions involved pree?isting

'(

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institutionali*ed form of political and civic life, devolution of autority from AnationalB

institutions to tose local institutions, and strong ties of cooperation and solidarity &et0een

localities > togeter named AIuasi-federalismB > and caracteristic of ideal-typical Convention

rupture in legality Te elements of te constitution making process itself are dou&le

differentiation &et0een legislation and constitution making, multiplicity of stages ;including

drafting, deli&eration, popular input, and in principle redrafting most importantly > &y non-em&odied yet non-antinomic popular

sovereignty ! inferred from tis tat Massacusetts constitution making process implied peculiar

understandings of popular sovereignty and te Will of te People Popular sovereignty is

diffused, &ecause it =ointly lays 0it te multiplicity of local centers of autorityH terefore it is

as sovereignty it is undivided yet collective and impersonal Te Will of te People tat

corresponds to tis conception of popular sovereignty as to &e conceptuali*ed as process of

deli&erative pu&lic opinion formation, outcome of 0ic is neiter unanimous nor sanctified &ut

open for revisions and contestation

/oneteless, my interpretation of te constitution making process in Massacusetts points to te

alternative route of constitution making troug conventions, te one not taken &y te Federal

Convention Federal Convention did not allo0 for popular input during te process and terefore

did not enact te principle of constitutional learning 2ence, it 0as less democratic and

participatory 2istorical circumstances partially e?plain tis coice: including popular input

reIuires e?tending te constitution making process in time and proliferation of deli&eration

')

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0ic migt lead to conflicts and strifes > neiter of tese reIuirements 0as desira&le in time

0en te ne0 polity &arely secured its independence, struggled 0it te aftermat of te 0ar,

and 0as afraid of invasion &y te revengeful ritis Tis does not mean, o0ever, tat tis more

democratic 0ay of constitution making sould &e forgotten, &ecause it allo0s us to construct a

critical ideal against 0ic oter constitution-making processes migt &e =udged

'#

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'ibliogra"h%(

3dams, Willi Paul The irst -merican Constitutions: Republican '!eolo%y an! the Ma2in% of

the #tate Constitutions in the Revolutionary ra Capel 2ill, /C: 8niversity of /ortCarolina Press, "$%

3rato, 3ndre0 AConventions, Constituent 3ssem&lies, and 1ound Ta&les: Models, Principlesand 5lements of Democratic Constitution-MakingB Global Constitutionalism", no ";'%"'' doi:"%"")Gannurevpolisci%)'%$"'%(@1ana, 3*i* The Two aces of -merican ree!om Cam&ridge, Mass: 2arvard 8niversity Press,

'%"%

1eardon, Paul C ATe Massacusetts Constitution Marks a MilestoneBPublius: The Journal of

e!eralism"', no " ;.anuary ", "$'((1ousseau, .ean-.acIues A4f te Social ContractB !n "f The #ocial Contract an! "ther Political

$ritin%s, ">"@@ 7ondon, /e0 Eork: Penguin ooks 7imited, '%"'

RRR A4n te Social ContractB !nRousseau: The )asic Political $ritin%s, translated &yDonald 3 Cress, Second 5dition,' edition !ndianapolis, !/LH Cam&ridge: 2ackett

Pu&lising Company, !nc, '%"'

Scmitt, Carl Constitutional Theory Duke 8niversity Press, '%%$SieyJs, 5mmanuel AWat !s te Tird 5stateKB !n #iey&s: Political $ritin%s: 'nclu!in% the

(ebate )etween #iey&s an! Tom Paine in *+,*, edited &y Micael Sonenscer, '>")'

!ndianapolis: 2ackett Pu&lising, '%%@