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A constituent assembly (sometimes also known as a constitutional convention) is a body composed for the purpose of drafting or adopting a constitution. Unlike forms of constitution-making in which a constitution is unilaterally imposed by a sovereign lawmaker, the constituent assembly creates a constitution through “internally imposed” actions, in that members of the constituent assembly are themselves citizens, but not necessarily the rulers, of the country for which they are creating a constitution.[1] As described by Columbia University Social Sciences Professor Jon Elster:

Constitutions arise in a number of different ways. At the non-democratic extreme of the spectrum, we may imagine a sovereign lawgiver laying down the constitution for all later generations. At the democratic extreme, we may imagine a constituent assembly elected by universal suffrage for the sole task of writing a new constitution. And there are all sorts of intermediate arrangements. [2]

Contents

Examples

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France

During the French Revolution (from July 1789 to September 1791) a National Constituent Assembly ("Assemblée nationale constituante") was formed when representatives assembled at the only location available – a tennis court – and swore the Tennis Court Oath on June 20, 1789, promising that they would not adjourn until they had drafted a new constitution for France. Louis XVI recognized the validity of the National Constituent Assembly on June 27, 1789.

Russia

An example of a constituent assembly is the Russian Constituent Assembly, which was established in Russia in the wake of the October Revolution of 1917 to form a new constitution after the overthrow of the Russian Provisional Government.

United States - Federal

Painting by Howard Chandler Christy (1873-1952)The delegates of the 1787 Philadelphia Convention sign the draft constitution that will be presented to the people of the states for ratification.

In U.S. History, the most famous constituent assembly is the Federal constitutional convention that drafted the Federal Constitution in 1787.[3] Although that constitution provided for its amendment, including through subsequent constitutional conventions, no federal constitutional convention has been called. In part this is due to the daunting requirements for holding a new constitutional convention (requiring the consent of either two-thirds of both houses of Congress or two-thirds of the States), but also because of the fear that wholesale changes in the Federal Constitution might undermine a document that has stood the test of nearly 225 years.[4]

United States - States

The Virginia Constitutional Convention, 1830 (George Catlin, ca. 1830). Many state constituent assemblies, like the 1830 Virginia Constitutional Convention, were highly formalized but the legitimacy of the constitution they drafted depended on whether it was authorized by the people, not whether a particular procedure was followed.

A rich tradition in the use of constituent assemblies exists at the state level of Constitutionalism. In fact, constituent assemblies met in the states before the formation of the Federal Constitution in 1787 as well as after its ratification. Since 1776 nearly 150 state constitutional conventions have met to draft or revise state constitutions.[5]

These early state constitutional conventions frequently did not use procedural steps like popular ratification that became commonplace in the mid-1800s. Yet they were considered to be constituent assemblies that exercised their authority as that of the people.[6] As American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War by Christian G. Fritz notes:

“A legitimate constitution depended on whether the sovereign people authorized it, not whether a particular procedure was used or whether revolutionary conventions were free of other responsibilities, such as passing ordinary legislation. It was the people as the sovereign who authorized drafting those first [state] constitutions that gave them their legitimacy, not whether they used procedures that matched what was later understood to be necessary to create fundamental law.”[7]

American state constituent assemblies in the 19th and 20th centuries reflected many qualities of a citizen’s movement.[8] From the start of state American constitution-making, delegates to constitutional conventions studied earlier state models of constitutions. They often self-consciously "borrow[ed]" constitutional text and provisions from other states. They often used in their drafting and debates compact and pocket-sized compilations of all the existing American constitutions, so that the constituent’s assembly could draw upon the latest in constitutional design.[9]

See also

References

  1. ^ Id. at 125
  2. ^ Axel Hadenius, ed., Democracy’s Victory and Crisis, Ch 7: Ways of constitution-making by Jon Elster (p. 123); Cambridge University Press, 1997. 431 pp [ISBN 9780521573115]
  3. ^ See The Records of the Federal Convention of 1787 (Edited by Max Farrand; revised edition in Four Volumes, Yale University Press, 1966).
  4. ^ Kermit L. Hall, Harold M. Hyman, and Leon V. Sigal, eds., The Constitutional Convention as an Amending Device (The American Historical Association and The American Political Science Association, 1981).
  5. ^ Albert L. Sturm, “The Development of American State Constitutions,” 12 Publius (1982), 57-98.
  6. ^ Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Univ. of North Carolina Press, 1997), 1-33; Christian G. Fritz, “Alternative Visions of American Constitutionalism: Popular Sovereignty and the Early American Constitutional Debate,” 24 Hastings Constitutional Law Quarterly (1997), 322-29; Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 31-35 [ISBN 978-0-521-88188-3]
  7. ^ Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 33 [ISBN 978-0-521-88188-3] For more on the role of the requirement of complying with specific procedures and processes, see Christian G. Fritz, "America’s Unknown Constitutional World," Bonus Article, Common-Place, Vol. 9, No. 1 (Oct. 2008)</a>
  8. ^ Laura J. Scalia, The Remaking of State Constitutions: The Uses of Liberalism in Designing Electoral Laws, 1820-1850 (Northern Illinois Univ. Press, 1999); John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).
  9. ^ Marsha L. Baum and Christian G. Fritz, “American Constitution-Making: The Neglected State Constitutional Sources,” 27 Hastings Constitutional Law Quarterly (2000), 199-242.

A constituent assembly (sometimes also known as a constitutional convention or constitutional assembly) is a body composed for the purpose of drafting or adopting a constitution. Unlike forms of constitution-making in which a constitution is unilaterally imposed by a sovereign lawmaker, the constituent assembly creates a constitution through “internally imposed” actions, in that members of the constituent assembly are themselves citizens, but not necessarily the rulers, of the country for which they are creating a constitution.[1] As described by Columbia University Social Sciences Professor Jon Elster:

Constitutions arise in a number of different ways. At the non-democratic extreme of the spectrum, we may imagine a sovereign lawgiver laying down the constitution for all later generations. At the democratic extreme, we may imagine a constituent assembly elected by universal suffrage for the sole task of writing a new constitution. And there are all sorts of intermediate arrangements. [2]

Contents

Examples

France

During the French Revolution (from July 1789 to September 1791) a National Constituent Assembly ("Assemblée nationale constituante") was formed when representatives assembled at the only location available – a tennis court – and swore the Tennis Court Oath on June 20, 1789, promising that they would not adjourn until they had drafted a new constitution for France. Louis XVI recognized the validity of the National Constituent Assembly on June 27, 1789.

India

The Constituent Assembly of India was elected to write the Constitution of India, and served as its first Parliament as an independent nation. It was set up as a result of negotiations between the leaders of Indian independence movement and members of the British Cabinet Mission. The constituent assembly was elected indirectly by the members of the Provincial legislative assembly, that existed under the British Raj. It first met on December 9, 1946 in Delhi. On August 15, 1947, India became an independent nation, and the Constituent Assembly also started functioning as India's Parliament. The Assembly approved the Constitution on November 26, 1949. On January 26, 1950, the Constitution took effect — a day now commemorated as Republic Day in India. At this point, the Constituent Assembly became the Provisional Parliament of India, until the first elections under the new Constitution took place in 1952.

Russia

An example of a constituent assembly is the Russian Constituent Assembly, which was established in Russia in the wake of the October Revolution of 1917 to form a new constitution after the overthrow of the Russian Provisional Government.

United States - Federal

In U.S. History, the most famous constituent assembly is the Federal constitutional convention that drafted the Federal Constitution in 1787.[3] Although that constitution provided for its amendment, including through subsequent constitutional conventions, no federal constitutional convention has been called. In part this is due to the daunting requirements for holding a new constitutional convention (requiring the consent of either two-thirds of both houses of Congress or two-thirds of the States), but also because of the fear that wholesale changes in the Federal Constitution might undermine a document that has stood the test of nearly 225 years.[4]

United States - States

A rich tradition in the use of constituent assemblies exists at the state level of Constitutionalism. In fact, constituent assemblies met in the states before the formation of the Federal Constitution in 1787 as well as after its ratification. Since 1776 nearly 150 state constitutional conventions have met to draft or revise state constitutions.[5]

These early state constitutional conventions frequently did not use procedural steps like popular ratification that became commonplace in the mid-1800s. Yet they were considered to be constituent assemblies that exercised their authority as that of the people.[6] As American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War by Christian G. Fritz notes:

“A legitimate constitution depended on whether the sovereign people authorized it, not whether a particular procedure was used or whether revolutionary conventions were free of other responsibilities, such as passing ordinary legislation. It was the people as the sovereign who authorized drafting those first [state] constitutions that gave them their legitimacy, not whether they used procedures that matched what was later understood to be necessary to create fundamental law.”[7]

American state constituent assemblies in the 19th and 20th centuries reflected many qualities of a citizen’s movement.[8] From the start of state American constitution-making, delegates to constitutional conventions studied earlier state models of constitutions. They often self-consciously "borrow[ed]" constitutional text and provisions from other states. They often used in their drafting and debates compact and pocket-sized compilations of all the existing American constitutions, so that the constituent’s assembly could draw upon the latest in constitutional design.[9]

See also

References

  1. ^ Id. at 125
  2. ^ Axel Hadenius, ed., Democracy’s Victory and Crisis, Ch 7: Ways of constitution-making by Jon Elster (p. 123); Cambridge University Press, 1997. 431 pp [ISBN 9780521573115]
  3. ^ See The Records of the Federal Convention of 1787 (Edited by Max Farrand; revised edition in Four Volumes, Yale University Press, 1966).
  4. ^ Kermit L. Hall, Harold M. Hyman, and Leon V. Sigal, eds., The Constitutional Convention as an Amending Device (The American Historical Association and The American Political Science Association, 1981).
  5. ^ Albert L. Sturm, “The Development of American State Constitutions,” 12 Publius (1982), 57-98.
  6. ^ Marc W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America (Univ. of North Carolina Press, 1997), 1-33; Christian G. Fritz, “Alternative Visions of American Constitutionalism: Popular Sovereignty and the Early American Constitutional Debate,” 24 Hastings Constitutional Law Quarterly (1997), 322-29; Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 31-35 [ISBN 978-0-521-88188-3]
  7. ^ Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 33 [ISBN 978-0-521-88188-3] For more on the role of the requirement of complying with specific procedures and processes, see Christian G. Fritz, "America’s Unknown Constitutional World," Bonus Article, Common-Place, Vol. 9, No. 1 (Oct. 2008)
  8. ^ Laura J. Scalia, The Remaking of State Constitutions: The Uses of Liberalism in Designing Electoral Laws, 1820-1850 (Northern Illinois Univ. Press, 1999); John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006).
  9. ^ Marsha L. Baum and Christian G. Fritz, “American Constitution-Making: The Neglected State Constitutional Sources,” 27 Hastings Constitutional Law Quarterly (2000), 199-242.


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