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Direct Democracy, Constitutional Reform, and Political Inequality in Post-Colonial America

Published online by Cambridge University Press:  23 April 2020

Mario Chacón
Affiliation:
Wilf Family Department of Politics, New York University
Jeffrey Jensen
Affiliation:
Social Science Division, NYU Abu Dhabi
Corresponding

Abstract

The ratification of constitutional changes via referendum is an important mechanism for constraining the influence of elites, particularly when representative institutions are captured. While this electoral device is commonly employed cross-nationally, its use is far from universal. We investigate the uneven adoption of mandatory referendums by examining the divergence between Northern and Southern U.S. states in the post-independence period. We first explore why states in both regions adopted constitutional conventions as the primary mechanism for making revisions to fundamental law, but why only Northern states adopted the additional requirement of ratifying via referendum. We argue that due to distortions in state-level representation, Southern elites adopted the discretionary referendum as a mechanism to bypass the statewide electorate when issues divided voters along slave-dependency lines. We demonstrate the link between biases to apportionment and opposition to mandatory referendums using a novel data set of roll calls from various Southern state conventions, including during the secession crisis of 1861.

Type
Research Article
Copyright
Copyright © Cambridge University Press 2020

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Footnotes

We thank Eric Schickler and two anonymous referees for helpful comments and suggestions. We would also like to thank Avidit Acharya, Jason Wittenberg, Noam Lupu, and other seminar participants at NYU Abu Dhabi and Northwestern for their valuable feedback.

References

1. Blount, Justin, Elkins, Zachary, and Ginsburg, Tom, “Does the Process of Constitution-making Matter?” in Comparative Constitutional Law and Policy, ed. Ginsburg, Tom (New York: Cambridge University Press, 2012), 3166Google Scholar.

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4. Blount, et al., “Does the Process of Constitution-Making Matter?” 37.

5. There is a related literature studying when discretionary referendums are used during important constitutional changes, such as the adoption of the EU Constitution. See, for example, Dur, Andreas and Mateo, Gemma, “To Call or Not to Call? Parties and Referendums on the EU's Constitutional Treaty,” Comparative Political Studies 44, no. 4 (2011): 468–92CrossRefGoogle Scholar.

6. See, for example, Dodd, Walter, The Revision and Amendment of State Constitutions, (Baltimore: Johns Hopkins Press, 1910), 26Google Scholar; Green, Fletcher, Constitutional Development in the South Atlantic States, 1776–1860: A Study in the Evolution of Democracy (Chapel Hill: University of North Carolina Press, 1931): 58Google Scholar.

7. Perhaps most famously, this period saw the removal of most of the economic restrictions to adult white male suffrage across all of the states. See, for example, Keyssar, Alexander, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2001)Google Scholar; Wilentz, Sean, The Rise of American Democracy: Jefferson to Lincoln (New York: W. W. Norton, 2006)Google Scholar.

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9. See, for example, Dinan, John, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006)Google Scholar; Freehling, William, Road to Disunion: Secessionists Triumphant, 1854–1861 (New York: Oxford University Press, 2007), 133Google Scholar.

10. See, for example, Hug, Simon, “Occurrence and Policy Consequences of Referendums: A Theoretical Model and Empirical Evidence,” Journal of Theoretical Politics 16, no. 3 (2004): 321–56CrossRefGoogle Scholar; Romer, Thomas and Rosenthal, Howard, “On the Political Economy of Resource Allocation by Direct Democracy,” The Quarterly Journal of Economics 93, no. 4 (1979): 563–87CrossRefGoogle Scholar.

11. See, for example, Gerber, Elisabeth, The Populist Paradox: Interest Group Influence and the Promise of Direct Legislation (Princeton, NJ: Princeton University Press, 1999)Google Scholar; Lupia, Arthur and Matsusaka, John, “Direct Democracy: New Approaches to Old Questions,” Annual Review Political Science 7 (2004): 463–82CrossRefGoogle Scholar; Matsusaka, John, For the Many or the Few: The Initiative, Public Policy, and American Democracy (Chicago: University of Chicago Press, 2008)Google Scholar.

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13. Elster, “Forces and Mechanisms in the Constitution-Making Process,” 374.

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15. Green, Constitutional Development in the South Atlantic States; Watson, Harry, “Conflict and Collaboration: Yeomen, Slaveholders, and Politics in the Antebellum South,” Social History 10, no. 3 (1985): 273–98CrossRefGoogle Scholar.

16. Scholars have shown using the slave schedules of the 1860 Census that nearly 90 percent of the South's slaves were owned by 10 percent of the region's adult white males (our proxy for eligible voters): Niemi, Albert, “Inequality in the Distribution of Slave Wealth,” The Journal of Economic History 37, no. 3 (1974): 747–54CrossRefGoogle Scholar; and that slaveholders were deeply concerned about the non-slaveholding majority raising taxes on slave property: Einhorn, Robin, American Taxation, American Slavery (Chicago: University of Chicago Press, 2008)Google Scholar.

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22. Green, Constitutional Development in the South Atlantic States.

23. Tarr, Understanding State Constitutions, 63.

24. Shearer, Benjamin, The Story of Statehood for the Fifty United States (Westport, CT: Greenwood, 2004), 1034Google Scholar.

25. See, for example, Dodd, The Revision and Amendment of State Constitutions, 26; Green, Constitutional Development in the South Atlantic States, 58.

26. Tarr, Understanding State Constitutions, 69.

27. Shearer, The Story of Statehood, 579.

28. Dodd, The Revision and Amendment of State Constitutions, 39. Its rapid diffusion can be seen in the use of a constitutional convention (instead of the existing Congress of the Confederation) in 1787 to revise the federal-level Articles of Confederation. The call in February of 1787 from the Congress said, “That it be recommended to the States composing the Union that a convention of representatives from the said States respectively be held for the purpose of revising the Articles of Confederation.”

29. Shearer, The Story of Statehood, 1034.

30. Ibid., 1048.

31. During this period, seventeen state constitutional conventions were held (seven in the North and ten in the South). See Appendix Table A1 for conventions by each state.

32. The texts of these constitutions were located in Thorpe, Francis, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State, Territories, and Colonies Now or Heretofore Forming the United States of America (Washington, DC: Government Printing Office, 1909)Google Scholar.

33. Freehling, Road to Disunion, 133.

34. Dodd, The Revision and Amendment of State Constitutions, 65.

35. Fehrenbacher, Don, Sectional Crisis and Southern Constitutionalism (Baton Rouge: Louisiana State University Press, 1995), 109Google Scholar, stated that “perhaps the outstanding feature of state constitutional development in the slave-holding South was its similarity to such developments elsewhere.”

36. While these democratizing reforms were due to many causes, one important factor driving their diffusion was the admission of six (three slave and three nonslave) frontier states between 1816 and 1821. None of these states enacted economic restrictions to white male suffrage. For information about which reforms were adopted and the factors contributing to their success, see, for instance, Keyssar, The Right to Vote, 26–52; Wilentz, The Rise of American Democracy, 197.

37. In creating this measure, we follow Ansolabehere et al., “Equal Votes, Equal Money.” Formally, this measure is: RRIi = Rj (i)/Nj (i) / Rj/Nj, where j(i) indicates that county i is located in state j. R is the number of state representatives, and N denotes the corresponding voting population.

38. Specifically, the p-value of the difference in means and variance, respectively, of RRI between regions is less than 0.01.

39. Delaware is excluded because it had only three counties in each decade.

40. Ansolabehere et al., “Equal Votes, Equal Money.”

41. According to Wilentz (The Rise of American Democracy, 341), “Between 1820 and 1829 (alone), the population of the western part of the state rose by nearly 40 percent, compared to a rise of only about 2 percent in the Tidewater counties.”

42. Wilentz, The Rise of American Democracy, 199–201.

43. Ibid., 341–44.

44. Excerpted from Upshur's speech (as cited in The Proceedings and Debates of the Virginia State Convention of 1829–1830 [Richmond: S. Shepherd: 1830], 6579Google Scholar; hereinafter denoted as PDV). In another speech at the convention, Madison (PDV, 538) expressed a similar justification for support for maintaining the unequal system of representation: “It is apprehended, if the power of the Commonwealth shall be in the hands of the Majority who have no interest in this species of property (slaves), that, from the facility with which it may be oppressed by excessive taxation, injustice may be done to its owners.”

45. This roll call is located in PDV, 654.

46. PDV, 831.

47. For instance, a delegate from present-day West Virginia proposed an amendment that “Resolved, that when the amended Constitution shall be submitted to the people, the following question, by way of amendment, shall be propounded to the people, for a final settlement of the principle of the apportionment of representation, viz: Shall the basis of Representation in both branches of the Legislature be white population exclusively?” (PDV, 575). While this motion was rejected, the roll call was not recorded.

48. PDV, 835.

49. One prominent contemporary politician said, “the increased value of the lands in certain sections has rendered this restriction on the taxing power so grossly absurd … that a hundred acres of land, worth fifty cents an acre, should pay one dollar (in) taxes, and that another hundred acres, worth fifty dollars the acre, should pay the same amount of tax”; as cited in Hamer, Philip, Tennessee: A History, 1673–1932, vol. 4 (American Historical Society: 1933), 318Google Scholar.

50. Wooster, Ralph, Politicians, Planters, and Plain Folk: Courthouse and Statehouse in the Upper South, 1850–1860 (Knoxville: University of Tennessee Press, 1975), 127Google Scholar. One historian claimed, “Clearly the major reason for a convention in the mid-1830s was the increasing uproar over the taxation of property”: Bergeron, Paul, Antebellum Politics in Tennessee (Lexington: University Press of Kentucky, 2015), 39Google Scholar. Furthermore, the 1796 constitution stipulated that amendments could only occur in a convention.

51. The precise resolutions, their description and vote tallies as taken from The Journal of the Convention of the State of Tennessee, 1834 (Nashville: Laughlin & Henderson, 1834)Google Scholar (hereinafter JCT) are presented in Appendix Table A2.

52. JCT, 325.

53. Ibid., 322.

54. The significance of the estimates for TN prior to the convention (as shown in Table 1), and complete insignificance thereafter, suggests that the reforms to apportionment were meaningful.

55. JCT, 254.

56. Hamer claims that the electorate's strong demand for democratizing reforms meant that many prominent state politicians were either defeated in the elections for delegates or refused to run (e.g., future U.S. President, James K. Polk). The sitting governor even asked the sitting U.S. president, Andrew Jackson, to serve as a delegate, hoping he could stem the demands for reform. In his letter to Jackson, he began, “From the returns … we shall have a convention. This I regret, for I incline to the belief that the opinions of the people at this time are not favorable to the formation of a sound constitution.” Hamer, Tennessee, 319.

57. Bergeron, Antebellum Politics in Tennessee, 39.

58. JCT, 125. Specifically, the committee's report stated the demands for emancipation represented a “premature attempt on the part of the benevolent to get rid of the evils of slavery.”

59. This roll call was located in JCT, 141.

60. Tennessee Constitution, art. II, sec. XXXI. The roll call for this provision is located in JCT, 201.

61. JCT, 389.

62. Dinan, The American State Constitutional Tradition, 39.

63. Tennessee Constitution, art. VI, sec. III.

64. Florida Constitution, art. IV, sec. 1.

65. Ibid., art. XIV, secs. 1 and 2.

66. When one delegate said that all states had apportionment based on white population, another delegate responded, “as a political axiom, it (is) true that representation should be based upon free white population. It may be stated as truth, in that part of the Union north of Mason's and Dixon's line … Having slaves among us, all these political truths must be accommodated to the interests of the country.… The maxim that representation should be based upon population is not so entirely untrue, but it is altogether unsuitable to our circumstances.” The History and Debates of the Convention of the People of Alabama. (Montgomery: White, Pfister, 1861)., p. 205Google Scholar.

67. Texas Constitution, art. VIII, sec. 1.

68. Thorpe, The Federal and State Constitutions.

69. Indeed, from the outset, most Northern states largely implemented systems of representation that were based on total population or qualified voters and periodic reapportionment: Ansolabehere, Stephen and Snyder, James, The End of Inequality: One Person, One Vote and the Transformation of American Politics (New York: W. W. Norton, 2008), 4245Google Scholar; Beramendi, Pablo and Jensen, Jeffrey, “Economic Geography, Political Inequality, and Public Goods in the Original 13 US States,” Comparative Political Studies 52, no. 13-14 (2019): 2235–82CrossRefGoogle Scholar. The latter authors argue that unlike Southern elites, who could largely meet their labor needs with slaves, the scarcely populated, larger Northern states’ need to induce migration into led them to commit in their initial constitutions to a population basis of apportionment.

70. Conley, Patrick and Flanders, Robert, The Rhode Island State Constitution (New York: Oxford University Press, 2011), 1827Google Scholar; Zagarri, Rosemarie, The Politics of Size: Representation in the United States, 1776–1850 (Ithaca, NY: Cornell University Press, 1987), 54Google Scholar.

71. New Jersey Constitution, secs. III and VII.

72. Keyssar, The Right to Vote, 71–76; Wilentz, The Rise of American Democracy, 539–45.

73. When one delegate to the Rhode Island convention proposed that the upper house also be apportioned by population, another delegate responded that the one-senator-per-town basis was important to “secure the rights of every citizen in this state. This security was of far greater importance than any apportionment of representation. The man of property should feel secure in his pursuits”; as cited in the Journal of the Convention Assembled to Frame a Constitution for the State of Rhode Island, at Newport, 1842 (Providence: State Printers, 1859), 33Google Scholar. Delegates in New Jersey voted to not record debates from the convention.

74. Saye, Albert, A Constitutional History of Georgia, 1732–1945 (Athens: University of Georgia Press, 2010), 169–72Google Scholar.

75. David Weiman, “Peopling the Land by Lottery? The Market in Public Lands and the Regional Differentiation of Territory on the Georgia Frontier,” The Journal of Economic History 51, no. 4: 835–60.

76. Saye, A Constitutional History of Georgia, 172.

77. As cited in Green, Constitutional Development in the South Atlantic States, 238.

78. Ibid., 239.

79. Georgia Constitution, amend. VII. See also Saye, A Constitutional History of Georgia.

80. Thorpe, The Federal and State Constitutions.

81. Specifically, the convention determined that slaves already brought into the territory were permitted to remain as slaves, and this decision was not submitted for voter ratification. See, for example, Freehling, Road to Disunion, 134.

82. Lucius Lamar to Howell Cobb, July 15, 1857, in The Correspondence of Robert Toombs, Alexander H. Stephens, and Howell Cobb, ed. Phillips, U. B. (Washington, DC: Government Printing Office, 1913, p. 405–06)Google Scholar. We hereinafter denote this source as TSC.

83. Stephens Letters, TSC, August 14, 1857, 417.

84. Cobb Letters, TSC, September 19, 1857, 423–24.

85. Congressional Globe, 35th Congress, 1st Sess., March 4, 1858, 961–92.

86. Ibid., March 16, 1858, 1134–36.

87. Ibid., 1136–40.

88. In the debates in the Georgia legislature over whether to secede by statute, one secessionist said, “Come, then, legislators … Represent the wisdom and intelligence of Georgia; wait not till the grog-shops and cross-roads shall send up a discordant voice from a divided people”; as cited in McCurry, Stephanie, Confederate Reckoning: Power and Politics in the Civil War South (Cambridge, MA: Harvard University Press, 2010), 56Google Scholar.

89. “Speech of Hon. A. H. Stephens,” New York Times, November 22, 1860.

90. As cited in Freehling, Road to Disunion, 382.

91. R. C. Griffin to M. L. Bonham, Milledge Luke Bonham Papers (University of South Carolina Library, November 6, 1860).

92. See, for example, Freehling, Road to Disunion; Wooster, Ralph, The Secession Conventions of the South (Westport, CT: Greenwood Press, 1976)Google Scholar.

93. See, for example, Barney, William, The Secessionist Impulse: Alabama and Mississippi in 1860 (Tuscaloosa: University of Alabama Press, 1974), 198Google Scholar; Freehling, Road to Disunion, 464.

94. As cited in Crofts, Daniel, Reluctant Confederates: Upper South Unionists in the Secession Crisis (Chapel Hill: University of North Carolina Press, 2014), 132Google Scholar.

95. Wooster, The Secession Conventions of the South, 141.

96. For Georgia, whose secession was likely pivotal to the ability to form the early Confederacy, a vote on whether to require voter ratification was held and rejected but not recorded.

97. Specifically, we also coded motions where we could infer the revealed position on secession and match each delegate to their constituency. There were no non-unanimous recorded roll calls in the South Carolina convention.

98. In the states for which there are existing returns in the elections for convention delegates, secessionist candidates received approximately 50 percent of the total votes cast in Georgia, 52 percent in Louisiana, and 56 percent in Alabama. For Georgia, see Johnson, Michael, “A New Look at the Popular Vote for Delegates to the Georgia Secession Convention,” The Georgia Historical Quarterly 56, no. 2 (1972): 259–75Google Scholar. For Louisiana, see Dew, Charles, “Who Won the Secession Election in Louisiana?The Journal of Southern History 36, no. 1 (1970): 1832CrossRefGoogle Scholar. For Alabama, see Denman, Clarence, The Secession Movement in Alabama (Montgomery: Alabama Department of Archives, 1933)Google Scholar.

99. Johnson, “A New Look at the Popular Vote”; Dew, “Who Won the Secession Election in Louisiana?”

100. Dodd, The Revision and Amendment of State Constitutions; Keyssar, The Right to Vote.

101. Mickey, Robert, “The Beginning of the End for Authoritarian Rule in America: Smith v. Allwright and the Abolition of the White Primary in the Deep South, 1944–1948,” Studies in American Political Development 22, no. 2 (2008): 143–82CrossRefGoogle Scholar.

102. Dragu and Rodden, “Representation and Redistribution in Federations.”

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