« Gregory Ablavsky & Tanner Allread: How Indigenous Peoples Debated the U.S. Constitution
Michael Ramsey
| Main | Andrew Coan & David Schwartz: The Original Meaning of Enumerated Powers [Updated]
Michael Ramsey »


Lorianne Updike Toler: The Consensus Constitution
Michael Ramsey

Lorianne Updike Toler (Northern Illinois University College of Law) has posted The Consensus Constitution (68 pages) on SSRN.  Here is the abstract:

Constitutions are written by rule-bound crowds. Although the role of rules in crafting legislation has long been studied, this learning has not yet been fully imported into constitution-writing literature where consensus has emerged as paramount. Yet rules may play an important role in creating consensus as in the U.S. Constitution’s drafting. There, a very high level of consensus was achieved, in large part because of the Constitutional Convention’s formal and informal rules. These facilitated a culture of deliberation, trust, vulnerability, change, and ultimate buy-in.

To understand how formal and informal rules facilitated consensus in Philadelphia, it is first necessary to un-father the U.S. Constitution. Constitutions are creatures of compact, and by nature involve many coordinated contributions. The U.S. Constitution is no exception. Yet sixth graders to Supreme Court Justices still consider James Madison the father of the Constitution despite that his parentage sounds more in lore than logic. A careful review of recent historiography, Madison’s own writings and notes of the Constitutional Convention, and new analytics tools reveal Madison to simply be one of a cast of characters who brought about the Convention, the Virginia Plan, and the ultimate Constitution. Immediately post-Convention, Madison considered himself and the Constitution a failure, and disclaimed any singularly unique role in its framing.

Although there have been many histories of the Constitution and the Convention, this article is the first to focus on its procedure, or how the US Constitution came into being and the Convention’s corresponding cultural history. In providing a procedural and cultural history of the US Constitution, it will outline Madison’s more modest role and emphasize those rules and constraints that cultivated a distinct, cohesive culture among the delegates, paving the way for constitutional consensus.