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United States of America



Introduction

American constitutions always sell. The statement is as old as the constitutions themselves and could easily have been made by Benjamin Franklin. Indeed, he was involved in the first collection of modern constitutions ever to be published. For obvious reasons, it had been American constitutions. Perhaps less obvious was that this pioneer collection first appeared in a French translation, and that it was not published in Philadelphia, but in Paris. From revolutionary times on, Americans have collected their constitutions and The American’s Guide became the most popular collection from the early nineteenth century up to the Civil War.

After the Civil War and Reconstruction eras, it appeared to Congress that it was time to publish the entire wealth of U.S. constitutional history, or, as the commission ran, The Colonial Charters and Constitutions of the United States. Congress assigned this task to the U.S. Senate Clerk of Printing Records, Benjamin Perley Poore, who in 1877 published The Federal and State Constitutions in two volumes. About thirty years later, after the U.S. had transcended the boundaries of the continent during what came to be known as the Age of Imperialism and a number of new states had entered the Union, Congress passed an act in 1906 ordering a new compilation of The Federal and State Constitutions to be made. The accomplished constitutional historian Francis Newton Thorpe required seven volumes to carry out this commission. During the twentieth century, however, interest in constitutional documents subsided. When it slowly resurfaced in the decades of the Cold War, eminent constitutional historian William F. Swindler published his Sources and Documents of United States Constitutions in the 1970s in ten volumes. These volumes broadened anew our access to the constitutional wealth and foundations of the country.

In spite of these three master editions, more than most other countries can boast of, a new edition appears to be appropriate to meet the dramatic increase in interest in constitutions all over the world. The present edition is a manifestation of as well as an answer to this renewed interest, even though at first glance it may appear to fall short of its predecessors because its scope is restricted, covering only the period from the Revolution up to the outbreak of the Civil War. The absence of colonial charters, treaties, and acts of Congress enabling and admitting states into the Union may appear as another shortfall. These self-imposed limitations result from the fact that this project sets the United States in the much broader context of the global rise and evolution of modern constitutionalism. For reasons explained in the general introduction, the middle of the nineteenth century represents a logical break-off point for such a project, while its restriction to constitutions proper is called for as a matter of coherence in an international context. Within these limitations, however, this edition aspires to be more complete and more accurate than any of its predecessors. Following the Articles of Confederation and the Federal Constitution and their amendments, the documents are grouped by states in alphabetical order. The oldest document in the collection is the first constitutional document of the Revolution, the Constitution of New Hampshire of January 5, 1776. The collection ends with the secession crisis, the formal cut-off date being December 31, 1860, but there are some instances where a last amendment was proposed or adopted to a constitution on its way of being rapidly replaced in 1861. Illustrating its enlarged perspective, the present volume of The Constitutional Documents of the United States contains a total of seventy-five documents, more than half of which have never been published before in any of the three previously printed collections.

The present edition pursues three major aims in publishing these documents. Contrary to previous publications restricting themselves to adopted constitutional documents, this edition extends its range to include, for the first time, failed constitutions and amendments. Failed constitutions in this edition are understood as those documents which were prepared by a body properly authorized to draft a constitution, normally a convention, but which afterwards were not put into effect because they were rejected by the people or because the proposed state was not admitted to the Union at that particular time, or ever. Such states include Deseret, Franklin or Frankland, New Mexico in 1850 and others. Failed amendments are those which were adopted by Congress, though not subsequently ratified by the requisite number of states. In the case of state constitutions, failed amendments are understood to be those which fell one step short of ratification. In a two-tier system this means they were adopted by both houses of the legislature in the first instance but were not ratified on the second vote, as required, after an intervening election. In a three-tier system only those proposed amendments have been included which passed both houses of the legislature twice, but were finally rejected by the people – amendments proposed only once by both houses of the legislature, but not adopted by them on the second vote, thus never getting to the third stage, did not qualify for the status of a failed amendment. As records of a process of trial and error, these failed constitutional documents reveal key aspects of the constitutional discourse in those states whose constitutions opened up this avenue for constitutional evolution.

The second major aim of the present edition is to publish these documents in the different languages that conventions, legislatures or other bodies thought it necessary to have them published in. The purpose of this was to allow ethnic minorities in the Union or particular states to acquire a better understanding of its constitution. These translations tell us more than most other documents about efforts and results of political and cultural integration of these minorities. As political expressions, they reflect mainstream ideas and party politics, but the manner in which these translations grapple with specific issues of the American political process and attempt to convey them to people from radically different political cultures is highly revealing, offering perspectives too frequently neglected in the general culture of constitutionalism.

The third major aim concerns the editing of these documents. Regarding pre-Civil War documents Swindler seems to have decided that Poore was the reliable source to follow in most cases. Unfortunately, Poore was not a professional constitutional historian and pursued what appeared to him to be the most obvious course. He asked the Secretaries of State in the various states to send him their constitutional documents, and they responded, if at all, by sending the editions and publications easily at hand. Thorpe preferred not to rely on these random sources, mostly printing from what appeared to him to be reliable editions which were generally published in the second half of the nineteenth century. The present edition has chosen a more historical-critical approach. Constitutions and declarations of rights are published on the basis of the sometimes exceedingly rare original printings of the authorized state or convention printers almost without exception. This may be the first separate printing of the constitution or of the convention journal. It is not a matter of a priori evidence, which of these two publications really was the first one. Ideally, both publications have been taken into account. Whenever possible the original official print was checked against what may be called the original manuscript, which in most cases is the engrossed manuscript. Unfortunately, these original manuscripts have not always survived. With rare exceptions, amendments were edited according to the text as published in the state Session Laws. For matters of convenience, however, the edited text is restricted to the constitutional stipulations proper, excluding the procedural parts normally contained in these acts of amendment. Finally, these original versions of constitutions and amendments have been checked against special, modern or standard editions to assess their reliability when appropriate. In all these cases, spelling, capitalization, and punctuation with all its inconsistencies strictly follow the original source, such as the manuscript, whenever it was the basis of the edition, or the original print.

The basic idea of this editorial policy is to publish authentic editions providing, whenever possible, a text as it was composed by its authoring body. This is a great desideratum in view of existing collections which almost never use original sources and are full of errors – mostly minor, but some so substantial as to completely change the meaning of a clause – and of omissions that often tend to obscure the meaning of a section or an article. Whoever ventures to scrutinize them carefully will easily discover that most of the pre-Civil War documents contained in previous collections are hardly reliable.

More than just a question of authenticity, this is also one of inclusion and completeness. The amount of new material in the present edition is not only due to the fact that it includes failed documents and foreign language publications. It is also a consequence of the amazing number of adopted amendments which have never appeared in any of the previous collections. In fact, even state compilations of adopted amendments may not necessarily be complete or accurate. Judging from the perspective of the amending process, our knowledge of state constitutional development is far from adequate and it is the aim of the present edition to narrow these gaps.

Collecting and editing these documents was only made possible thanks to the help and assistance of numerous people in archives and libraries throughout the country, and elsewhere. The American Antiquarian Society, Harvard University Libraries, Historical Society of Pennsylvania, John Carter Brown Library, Library Company of Philadelphia, Library of Congress, Newberry Library, and Yale University Libraries are only some of those depositories which were always ready to contribute material from their outstanding holdings. Jane Fitzgerald (National Archives and Records Administration, Washington, D.C.), Miriam Gan-Spalding (Florida State Archives, Tallahassee, FL), Randy L. Goss (Delaware Public Archives, Dover, DE), Wendy Richter and Russell Baker (Arkansas State Archives, Little Rock, AR), Mel Smith and Denise Jernigan (Connecticut State Library, Hartford, CT), and Genevieve Troka (California State Archives, Sacramento, CA), readily provided material and answered questions. To all of them, I wish to express my sincere thanks. Taylor Fitchett of the University of Virginia Law Library at Charlottesville, VA deserves particular thanks for generously providing a most productive working atmosphere and for unfailing assistance. I am happy to extend very special thanks to Elmar Mittler and the staff of the Göttingen University Library for providing material and working together over countless years. Advice, assistance, and help in numerous and always most welcome ways was offered by James G. Cusick, Norman S. Fiering, Brandon Haynes, Dick A. E. Howard, Marc W. Kruman, and Gordon S. Wood. Chris Brooks and Tom Clark were most helpful in letting the introduction and notes appear in proper English. Margarita Cortés Suárez, Valérie Courtas, Miriam Leitner, and Matthias Schneider tended to the manuscript in its different stages, while Katja Werkmeister provided the index. In their different ways, they all contributed to effectuating this edition, though none of them shares any responsibility for the mistakes and errors I may have made. Without Gudrun this edition would never have been possible; words are too meager to express my gratitude to her.

Select Bibliography

General sources

Poore, Benjamin Perley (ed.), The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States, 2 vols., 2nd ed., Washington, D.C.: Government Printing Office, 1878.

Thorpe, Francis N. (ed.), The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, now and heretofore Forming the United States of America, 7 vols., Washington, D.C.: Government Printing Office, 1909.

Swindler, William F. (ed.), Sources and Documents of the United States Constitutions, 10 vols., Dobbs Ferry, NY: Oceana Publications, 1973-1979.

General Literature

Adams, Willi Paul, The First American State Constitutions. Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, Exp. ed., Lanham, MD: Rowman & Littlefield, 2001.

Currie, David P., The Constitution in Congress: The Federalist Period, 1789-1801, The Jeffersonians, 1801-1829, Democrats and Whigs, 1829-1861, 3 vols., Chicago and London: University of Chicago Press, 1997-2005.

Fehrenbacher, Don E., Sectional Crisis and Southern Constitutionalism, Baton Rouge and London: Louisiana State University Press, 1995.

Finkelman Paul and Stephen E. Gottlieb (eds.), Towards a Usable Past. Liberty Under State Constitutions, Athens and London: University of Georgia Press, 1991.

Green, Fletcher M., Constitutional Development in the South Atlantic States, 1776-1860. A Study in the Evolution of Democracy, Chapel Hill, NC: University of North Carolina Press, 1930.

Hall, Kermit L. and James W. Ely, Jr. (eds.), An Uncertain Tradition. Constitutionalism and the History of the South, Athens and London: University of Georgia Press, 1989.

Johnson, David Alan, Founding the Far West. California, Oregon, and Nevada, 1840-1890, Berkeley, Los Angeles, Oxford: University of California Press, 1992.

Knupfer, Peter B., The Union As It Is. Constitutional Unionism and Sectional Crisis, 1787-1861, Chapel Hill and London: University of North Carolina Press, 1991.

Kruman, Marc W., Between Authority and Liberty: State Constitution Making in Revolutionary America, Chapel Hill and London: University of North Carolina Press, 1997.

Lutz, Donald S., The Origins of American Constitutionalism, Baton Rouge, LA: Louisiana State University Press, 1988.

Lutz, Donald S., Popular Consent and Popular Control. Whig Political Theory in the Early State Constitutions, Baton Rouge and London: Louisiana State University Press, 1980.

McHugh, James T., Ex Uno Plura. State Constitutions and Their Political Cultures, Albany, NY: State University of New York Press, 2003.

Scalia, Laura J., America’s Jeffersonian Experiment. Remaking State Constitutions 1820-1850, De Kalb, IL: Northern Illinois University Press, 1999.

Schwartz, Bernard, From Confederation to Nation. The American Constitution, 1835-1877, Baltimore and London: Johns Hopkins University Press, 1973.

Tarr, G. Alan, Understanding State Constitutions, Princeton and Oxford: Princeton University Press, 1998.

Wood, Gordon S., The Creation of the American Republic, 1776-1787, Chapel Hill, NC: University of North Carolina Press, 1969.