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University of Pennsylvania ScholarlyCommons Publicly Accessible Penn Dissertations 2017 American Reconstitution: How The States Stabilize American Constitutional Development Robinson Woodward-Burns University of Pennsylvania, rowood@sas.edu Follow this and additional works at: https://repository.edu/edissertations Part of the Law Commons, Political Science Commons, and the United States History Commons Recommended Citation Woodward-Burns, Robinson, "American Reconstitution: How The States Stabilize American Constitutional Development" (2017). Publicly Accessible Penn Dissertations.edu/edissertations/2643 This paper is posted at ScholarlyCommons.edu/edissertations/2643 For more information, please contact repository@pobox. American Reconstitution: How The States Stabilize American Constitutional Development Abstract The American Constitution is exceptionally stable. Americans have proposed and ratified only one national constitution with only twenty-seven amendments.

In contrast, the American states have proposed 354 constitutions, held 250 conventions, and ratified 146 constitutions with at least 5,900 amendments. Why is the federal Constitution so much more stable than the state constitutions? Many scholars cite the federal Constitution’s higher procedural barriers to revision. But this dissertation asserts that ongoing state constitutional revision resolves national constitutional controversies, preempting federal constitutional amendment and quieting national inter-branch conflict. The dissertation tests this claim in two ways.

First, it compares all attempted federal and state constitutional revision since 1776, drawing on an original dataset of all proposed state constitutions to show that federal and state constitutional revision are closely associated over time. Second, the dissertation disaggregates this trend by topic, offering case studies in which state constitutional revision preempted or resolved national constitutional conflicts. Since the states constrain the scope of national constitutional controversies, one cannot fully understand the political development of the national branches or Constitution without the states. Degree Type Dissertation Degree Name Doctor of Philosophy (PhD) Graduate Group Political Science First Advisor Rogers Smith Keywords American constitutional development, American political development, Constitutional amendment, Constitutional legitimacy, Public law, State constitutions Subject Categories Law | Political Science | United States History This dissertation is available at ScholarlyCommons: https://repository.edu/edissertations/2643 AMERICAN RECONSTITUTION: HOW THE STATES STABILIZE AMERICAN CONSTITUTIONAL DEVELOPMENT Robinson Woodward-Burns A DISSERTATION In Political Science Presented to the Faculties of the University of Pennsylvania In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy 2017 Supervisor of Dissertation ______________ Rogers M.

Brown Distinguished Professor of Political Science Graduate Group Chairperson _________________ Matthew Levendusky, Associate Professor of Political Science Dissertation Committee Anne Norton, Professor of Political Science Mark A. Graber, University System of Maryland Regents Professor To Mom and Dad, My First Teachers ii ACKNOWLEDGEMENTS In my first week at the University of Pennsylvania I determined to live by Franklin’s thirteen virtues until I completed my dissertation. I had some help from a few people, who modeled the following virtues from Franklin’s list. Years before, my father taught me multiplication and division, which I was certain I could not learn, and so also taught me resolution.

Suitably, decades later he helped me draft the quantitative part of this dissertation. My mother taught me humility. Like my father, she holds a deep commitment to public service, which inspired me to study political science. I would also like to remember my grandfather Ralph, who as a first-generation American had the chutzpah to put himself through college at Penn.

My dissertation committee demonstrated other virtues that Franklin listed. Rogers Smith, my advisor, was a model of industry, quickly reading and returning lengthy chapter drafts despite his many commitments to Penn and the discipline. He has shaped my thinking and identity as a political scientist. This dissertation would not exist without him.

Anne Norton broadened my understanding of American political thought and also listened to my anxieties about failing my comprehensive examinations and about applying for jobs, and so demonstrated sincerity. Mark Graber, who taught me at the University of Maryland and supported my transfer to Penn, informed my understandings of how the Constitution has confronted questions of slavery, law, and justice, and gave a lawyer’s insight on my work. I would like to thank other professors as well. Jeff Green read my essays on Emerson’s contemplative nature walks, and guided my thinking on living contemplatively and with silence and tranquility.

Many Penn faculty answered other, more concrete questions. Professors at Maryland, including Fred Alford, introduced me to the professional study of political science. Faculty at the College of William and Mary, and P. Brendese in particular, encouraged my graduate school applications and gave me a sound intellectual foundation.

I would also like to thank the University of Pennsylvania and University of Maryland for funding my doctoral study over the last seven years. Finally, my classmates and friends at Penn and Maryland, living on graduate student stipends, showed me how to live in frugality, though we were not always as moderate, chaste, and temperate as the puritanical Franklin instructed. Occasionally we failed Franklin’s injunction to temperance and to “drink not to elevation,” but I trust this elevated our minds and conversation. A few of these classmates were at times also roommates who tolerated my lapses in order and cleanliness while demonstrating these virtues themselves.

To these friendships and late night conversations I owe this dissertation’s best ideas. iii ABSTRACT AMERICAN RECONSTITUTION: HOW THE STATES STABILIZE AMERICAN CONSTITUTIONAL DEVELOPMENT Robinson Woodward-Burns Rogers M. Smith The American Constitution is exceptionally stable. Americans have proposed and ratified only one national constitution with only twenty-seven amendments.

In contrast, the American states have proposed 354 constitutions, held 250 conventions, and ratified 146 constitutions with at least 5,900 amendments. Why is the federal Constitution so much more stable than the state constitutions? Many scholars cite the federal Constitution’s higher procedural barriers to revision. But this dissertation asserts that ongoing state constitutional revision resolves national constitutional controversies, preempting federal constitutional amendment and quieting national inter-branch conflict. The dissertation tests this claim in two ways.

First, it compares all attempted federal and state constitutional revision since 1776, drawing on an original dataset of all proposed state constitutions to show that federal and state constitutional revision are closely associated over time. Second, the dissertation disaggregates this trend by topic, offering case studies in which state constitutional revision preempted or resolved national constitutional conflicts. Since the states constrain the scope of national constitutional controversies, one cannot fully understand the political development of the national branches or Constitution without the states. iv TABLE OF CONTENTS ACKNOWLEDGEMENTS.

IV LIST OF TABLES. VII LIST OF FIGURES. VIII PART I: CONSTITUTIONAL THEORY .1 CHAPTER 1: EXPLAINING FEDERAL AND STATE CONSTITUTIONAL REVISION. Question: What Determines Constitutional Duration?.

Federal Constitutional Stability. State Constitutional Instability. 14 CHAPTER 2: HOW STATE CONSTITUTIONAL REVISION STABILIZES THE FEDERAL CONSTITUTION. Implications for American Constitutional Development.

41 CHAPTER 3: TRENDS IN FEDERAL AND STATE CONSTITUTIONAL REVISION. Observing Constitutional Change. Comparing National and State Constitutional Change since 1787. Trends in Federal and State Revision.

65 PART II: CONSTITUTIONAL DEVELOPMENT. 80 CHAPTER 4: THE FOUNDING ERA, 1760-1799. The Colonial Era and Revolution, 1760-1776. Colonial Constitutional Controversies.

Escalation and Rebellion. Congressional Deference to the State Constitutional Conventions. Separating Legislative and Constitutional Authority. Slavery and the First State Constitutions.

National Responses: The Confederation Era and Convention, 1787-1799. 146 CHAPTER 5: THE ANTEBELLUM ERA, 1800-1849. Trends in State and Federal Constitutionalism, 1800-49. Constitutional Controversies at 1800.

Constitutional Conflict and Resolution, 1800-1828. Jeffersonian State Constitutional Revision. Constitutional Conflict and Resolution, 1828-1849. Jacksonian State Constitutional Revision.

211 CHAPTER 6: THE CIVIL WAR AND RECONSTRUCTION, 1850-77. Trends in State and Federal Constitutionalism, 1850-77. Constitutional Controversies at 1850. Escalation and the Civil War, 1850-65.

State Constitutionalism and the Slavery Crisis. State Constitutionalism during the Civil War. Reconstruction through State Constitutional Revision, 1865-77. 288 Appendix A: Attempted State Constitutional Replacement.

288 Appendix B: Time Series Plots. 294 Appendix D: Proposed Federal and State Constitutional Provisions by Topic. 310 vi LIST OF TABLES Table 1: Paths and Examples of American Constitutional Development. 29 Table 2: Observing National and State Constitutional Contention and Change.

49 Table 3: Association between Federal Amendment Proposals and State Constitutional Proposals, 1791-2014. 60 Table 4: Methods and Outcomes of American State Constitutional Change, 1776-2017. 69 Table 5: American States and Rates of Constitutional Proposal and Ratification by Region, 1776-2017. 72 Table 6: States with Property Requirements on the Franchise.

190 Table 7: State-Level Outcomes of Attempts at Regulation of Property and Tax Qualifications on the Franchise, 1800-50. 197 Table 8: Proposals for State Constitutions, 1776-2017. 290 Table 9: Excluded State Constitutional Conventions and Committees, 1776-2017. 290 Table 10: Proposed Federal Amendments by Topic Area, 1788-2014.

296 Table 11: Proposed Federal Amendments by Topic Area, 1800-77. 297 Table 12: Proposed Federal Amendments to Regulate Banking and Internal Improvements, 1788-1860. 298 Table 13: Proposed Federal Amendments to Regulate Slavery, 1788-1859. 298 Table 14: State and National Declarations of Independence.

299 Table 15: State Constitutional Banking, Corporate, and Debt Regulations, 1776-1860. 303 Table 16: State Constitutional Slavery Regulations, 1776-1860. 305 Table 17: Abolition, Equal Protection, and Enfranchisement in Ex-Confederate and Slaveholding States, 1865-70. 305 Table 18: Correlation between Proposed Federal Amendments and State Constitutions, 1791-2014.

306 Table 19: State Constitutional Replacement and Change in Partisan Control of State Legislatures, 1800-49. 308 Table 20: State Constitutional Politics and Instability, 1800-50. 309 vii LIST OF FIGURES Figure 1: The States’ Role in American Constitutional Reform. 30 Figure 2: The Courts and States in National Constitutional Reform.

42 Figure 3: Proposed Federal Amendments and State Constitutions by Five-Year Bins, 1791-2014. 61 Figure 4: Correlation between Proposed Federal Amendment Proposals and State Constitutions by Rolling Twenty-Year Intervals, 1787-1995. 62 Figure 5: Proposed Federal Amendments by Topic Area, 1788-2014. 68 Figure 6: Modes of State Constitutional Proposal, 1776-2017.

71 Figure 7: State and Federal Constitutional Banking Regulations, 1776-1860. 216 Figure 8: Proposals for State Constitutions and for Federal Constitutional Amendments, 1791-1877. 223 Figure 9: Rates of Proposals for Federal Amendments and State Constitutions, 1775- 2017. 291 Figure 10: Proposed Federal Amendments, Unratified and Ratified State Constitutions, 1775-2017.

291 Figure 11: Proposed Federal Amendments and Ratified State Amendments, 1775-2017. 291 Figure 12: Congressional Polarization and State Constitutional Revision by Two-Year Bins, 1879-2013. 291 Figure 13: State Constitutional Replacement and U. Supreme Court Caseload, 1859- 2013.

292 Figure 14: State Constitutional Amendments Ratified, 1789-1877. 292 Figure 15: Trends in State Constitutional Revision by Region, 1776-2017. 293 Figure 16: Geographic Distribution State Constitutions, 1776-2017. 294 Figure 17: Geographic Distribution of Attempts to Draft New State Constitutions, 1776- 1877.

295 Figure 18: State Age and Constitutional Turnover, 1776-2017. 306 Figure 19: State Constitutional Approval and Stability, by State. 307 viii PART I: CONSTITUTIONAL THEORY 1 CHAPTER 1: EXPLAINING FEDERAL AND STATE CONSTITUTIONAL REVISION “The question of the relation of the States to the Federal Government is the cardinal question of our constitutional system. At every turn of our national development we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it.

Question: What Determines Constitutional Duration? Constitutions vary in duration. Some last a year, while others last centuries. Why is this, and what ought to be done about it? This question is particularly important in the United States, home to the world’s first and oldest formal written national constitution.2 Americans have proposed and ratified only one national constitution and passed only twenty-seven national amendments in the 230 years since the Constitution’s drafting. In contrast, the American states have proposed 354 state constitutions, held 250 conventions, and ratified 146 constitutions and 5,900 amendments.

The average state constitution lasts only 64 years.3 1 Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908), 173. 2 The question is much older than the United States. Plato and Aristotle prescribed constitutions to calm Greek factions, Machiavelli revived Roman institutions to reconcile warring Florentine classes, and Hobbes and Locke bound the English crown and republicans to a common contract. Inspired by these constitutions, Madison framed a document to survive “the mortal diseases under which popular governments have everywhere perished.