Constitutional Origin Stories for Litigators

Today, September 17, we commemorate the signing of what would become the U.S. Constitution in Philadelphia. Although it was not our highest law until nine states had ratified the document almost a year later, the signing was important because it marked the end of the convention where the delegates composed the Constitution, and because all but three of the delegates lent their signatures of support for what would become a brutal battle in ratification.

Amid the necessary exploration of the Constitution itself on Constitution Day, we should also remember the mechanism through which it was both drafted and ratified. On this Constitution Day I want to especially reach out to litigators who might be making constitutional arguments in their cases and remind them not to forget about these “origin stories” of constitutional law. As you’ll see, this is particularly true for state constitutional origins.

Conventions, not legislatures

A special convention—not the Continental Congress—wrote the U.S. Constitution, and special conventions—not state legislatures—ratified it, state-by-state. Further, we should also remember that almost all state constitutions were drafted in special conventions—again, not state or territorial legislatures. Some of those also ratified their handiwork (especially in the early years of the Republic), but usually the product would then go to the general voting public for ratification. Again, though, not the legislature. Altogether, Americans have had a special convention to propose or ratify their fundamental laws hundreds of times.

Conventions aren’t perfect, but it’s worth reflecting on how they’re different from the standard legislative process. Because the delegates are elected for one time only they’re not as worried about reelection (although they may have other political futures in mind). And because constitutions generally last for a long time and are fairly general documents it can be harder for delegates to engage in naked rent seeking. This doesn’t mean that human nature, greed, and foolhardiness doesn’t enter into convention halls, but it does mean that the depravities of normal sausage-making aren’t as present. Sometimes elected legislators themselves aren’t even allowed to serve as delegates, for this very reason.

What constitutional litigators leave on the table

How do we tell what happened at a convention? The records vary in considerable degree as to their quality. The Philadelphia convention of 1787 famously was held in secret, and the best record we have of what was said—Madison’s notes—were only published decades later. Many state conventions only have a scant journal record of what happened, and historians often have to turn to newspapers of the time to learn the specifics of what was said or why certain provisions were adopted or rejected.

But many conventions have much fuller records, including verbatim transcripts of floor debates. This is especially true for later conventions. The records for those that occurred in the wave of conventions in the 1950’s, ‘60’s, and ‘70’s often even have detailed committee reports and the like. Thanks to the magic of scanning technology, a great deal of these materials (although not yet all) are available online for free.

I’m not someone who believes that a statement on the floor of a convention is the be-all-and-end-all on what a constitution’s language “means.” It certainly is relevant, however, and to the extent someone is arguing over a provision’s “original meaning” it’s often as good of evidence as any on what people thought language meant at the time the constitution was adopted.

Constitutional records should be handled with care, but they’re often rich in material and often accepted by state courts—of all ideologies—as important in establishing constitutional meaning. “Original meaning” isn’t nearly as controversial under state constitutional law as under federal. Yet, state convention records are often one of the last things litigators think of looking at when faced with a constitutional argument. So used to the caselaw method, litigators will mine their state’s reports far back into history on what the courts have said about the language at issue, but will leave aside what the people who actually wrote that language had to say. It’s a bit puzzling why this is, as it’s common for litigators to look to the legislative history of statutes—the use of which has its own fraught controversies. It could be that constitutional records are just less familiar to lawyers. Legislative history, particularly from recent years, is usually compiled by legislative staff and readily accessible. Constitutional history seems more like, well, history.

As I said, though, it’s history that today is not that hard to find. Yes, a lot of records are still buried in archives that the typical litigator won’t have time or funds to go rummage through. For those that are online, though—especially floor debates—it only takes a few clicks on Google Books or Archive.org to locate them. Plus, they’re usually searchable. In addition, projects like Oxford University’s Quill Project are making progress in optimizing these records for research. In coming years even more records will be available and it will get harder and harder for litigators to justify not looking at a state constitution’s origin story. Indeed, judges might come to expect it.

The death—and exhumation?—of conventions

Another small part of litigators’ unfamiliarity with convention records may be the modern “death” of the constitutional convention. There hasn’t been one in America in 30 years, and there hasn’t been a new constitution since 1986, by far the longest “drought” in history since the Founding. I don’t know if that’s a good or a bad thing, but they’re not part of our world like they would be in 1787, 1868 (when most ex-Confederate states held Reconstruction conventions), 1889-90 (when six states entered the union and all drew up new constitutions), the 1960s, or, frankly, any other time in between. Constitutional conventions have been a normal part of our history and engaging with them is normal too, whether you’re a school kid with a civics project, a historian, or a litigator writing a brief to your state supreme court about the meaning of a provision. Not checking the records of the relevant conventions (yes, often there’s more than one to worry about!) isn’t just not good scholarship, it’s not good lawyering either.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.