Lorianne Updike Toler* | 25.6 | Citation: Lorianne Updike Toler, In the Room Where the Constitution Happens, 25 U. Pa. J. Const. L. 1418 (2023).

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Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process.

In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots.

This study, the first monogram on New Hampshire’s five constitution-writing processes between 1776-1784, provides needed empirical evidence for linking a constitution’s legitimacy to getting all the right groups “in the room where it happened” and suggests further theoretical links between constitutional process and a constitution’s medium and long-term legitimacy. It also provides the first detailed telling of the moment when the theory of popular sovereignty was made real through the earliest popular constitution-writing and further participatory innovations not repeated for another 200 years in Africa.

This study first reviews relevant extant literature on domestic and comparative constitutionalism before proceeding to an in-depth study of New Hampshire’s five constitutional processes. The first process produced a temporary constitution on January 5, 1776. This crude, 911-word document heralded the first epoch of popular sovereignty- inspired constitution-writing. New Hampshire’s next three attempts were instituted via popular sovereignty innovations of constitutional conventions, supermajoritarian ratification, direct popular participation in constitution drafting via town recommendations, and special issue constitutional referenda, but all were stillborn. This because each excluded the western-most portion of the state. It was not until the process included representatives from this area “in the room [where the constitution] happened” that a draft was finally ratified in 1784.

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* Assistant Professor, Northern Illinois University College of Law, Visiting Professor, Pennsylvania State Law School, and Affiliated Faculty Fellow, Information Society Project, Yale Law School.