Constitution-writing rules

Abstract

The new gold standard for constitution-writing is consensus. Such consensus is grounded on inclusivity and deliberation within the drafting body. Yet such consensus is under-theorized. It does not appreciate the impact of rules on constitutional outcomes. That parliamentary procedure is generally associated with majoritarian politics may explain this deficiency, but it is unjustified, as many procedural rules may facilitate a culture of trust among drafters that makes consensus possible. This study is the first to formulate a theory for how rules can contribute to consensus and identifies specific rules that are most likely to contribute to corporate trust upon which constitutional consensus depends. It then provides a case study in how the US Constitutional Convention deployed rules and benefited from physical strictures and structures that helped produce a high level of consensus.

1. Introduction

While Egypt was redrafting its Constitution as part of the Arab Spring in 2012, Ruth Bader Ginsburg famously quipped that Egypt should not use the US Constitution as a model, but should instead use the South African Constitution of 1997.¹ At the time, Ginsburg’s advice shocked US audiences;² yet it came as no surprise to those who work in the comparative constitutions space. Constitution-writing procedure, as a subfield within comparative constitutional law and political science, had just come of age in 1995 concurrent with the writing of the Ugandan and South African Constitutions.³ These processes permitted the public to participate in constitutional creation in new and exciting ways, had highly inclusive drafting bodies, and were largely transparent.⁴ As the procedure of constitution-crafting became an academic focus, international non-governmental organizations also began to churn out recommendations and studies for the growing field of constitution-writing practitioners. The United Nations published guidance for its missions supporting constitution-writing, codifying the features of the Ugandan and South African writing processes—participation, inclusivity, and transparency—as normative.⁵ Based on the two African processes, participation was defined as the ability of ordinary citizens to learn about a drafting process, vote for constitution drafters, propose texts or principles, or approve a constitution; inclusivity was the breadth of political powers (both political parties and other entities with political bargaining power) that had a seat at the constitutional negotiating and drafting table.⁶

The South African writing process and constitution have continued to inspire. The process’s defining feature was “sufficient consensus,” wherein each decision received the buy-in of multiple parties.⁷ Although the aspiration was to gain a supermajority of parties’ buy-in, if such was unobtainable, the “sufficient consensus” decision-threshold was met if at least the two dominant parties—the major two parties representing both White and Black South Africans—agreed.⁸ Thus “sufficient consensus” was not a perfect, complete consensus, but one wherein compromises were respected, built upon, and fused with broader-reaching consensus decisions until “sufficient consensus” was attained for the ultimate constitutional compact in its entirety. This was accomplished through “increased discussion time, reference of controverted issues to technical committees, adjournments, private consultations, and the like.”⁹

The kind of consensus that hallmarked the South African process has been central to Don Horowitz’s recent monograph,¹⁰ which crowned consensus constitution-writing king. Horowitz’s consensus theory is defined by deliberation and inclusivity.¹¹ He maintains that consensus constitutions are normative: Horowitz opines that they are likely more durable,¹² and other scholars have identified inclusive processes as being correlated to higher levels of democracy and rights protection.¹³

Yet Horowitz’s consensus remains under-theorized, in terms of its definitional characteristics vis-à-vis compromise, its basis in deliberative democracy, and its interplay with the rules characterizing the new institutionalism. According to Horowitz, compromise and consensus are related but distinct. Compromise can be mere horse-trading, a tit-for-tat exchange wherein negotiating parties give up all that they want for something that is “good enough.” It does not require a change of mind or heart, and parties can harbor a sense of loss that later embitters them. Such buyer’s remorse can lead to later instability, particularly when power changes hands. Consensus is more than the sum of negotiated compromises. It can be achieved through the process of working through and building upon successive compromises which are respected over time by its parties. Consensus reflects wholehearted buy-in by a large majority of drafters. Given the attitude of the drafters, such agreements will naturally be more stable. Consensus can apply to discrete agreements or to the constitutional compact as a whole. Furthermore, a “consensus constitution” can reflect the concept of South Africa’s “sufficient consensus,” wherein most of the agreements reflected in the Constitution are the result of consensus, while some are the result of mere compromise. Drafters can also buy in to the constitutional compact without wholeheartedly accepting discrete sections or agreements.

With regards to the application of new institutionalism’s modality, there has been some coverage of procedural rules—the effect of meeting in secret,¹⁴ for instance—but the role of rules in constitution-writing has never been fully studied. This is likely because the rules of parliamentary procedure—so often used in majoritarian politics—are seen as antithetical to non-majoritarian consensus. However, rules are worth another look. Many traditional (and some not-so-traditional) rules of parliamentary procedure are conducive to consensus. Though perfect consensus is not required, this level of agreement cannot happen without at least some delegates changing their minds. Change in a power-play environment is difficult to impossible: it requires acknowledging when you are wrong and admitting it openly by adopting a new course. Such change of necessity requires a high degree of vulnerability. This level of vulnerability can only happen in a safe environment of trust. Rules of parliamentary procedure can facilitate such trust through increasing interpersonal connections, understanding, respect, and promise-keeping.

A case study of the role of rules in facilitating a culture of trust leading to consensus in a constitution-drafting body can be found in the US Constitutional Convention of 1787. Rules featured prominently in Philadelphia. One such distinguishing rule was secrecy. Delegates were prohibited from sharing any details of their work outside of the Convention in either written or verbal format. Other formal rules of the Convention required perfect attendance and attention. Still others prohibited speaking a second time until all others had a chance, permitted calling each other to order, and allowed reconsideration of votes only under limited circumstances.¹⁵ Informal rules or constraints reduced the size of the body so that each had an opportunity to develop personal relationships with all other delegates. Moreover, for most, Philadelphia was situated far from home. This physical constraint removed delegates from distractions of family and business and frequently resulted in them rooming with one another. This brought the delegates into close, regular social contact out of doors, which deepened interpersonal relationships and engendered trust. In all, the Convention’s rules facilitated civility and deliberation, which, given enough time in and out of doors, yielded respect and trust. Such conditions eventually produced a culture wherein vulnerability was made safe and delegates were thereby permitted to pivot and wholeheartedly buy into the final compact. It thereby became a consensus constitution.

This article will proceed in three sections. Section 2 will briefly survey the relevant scholarly literature. Section 3 will construct a theory of how rules could improve trust within a constitution-drafting body and facilitate constitutional consensus. Section 4 will then provide a case study of how rules as well as physical constraints produced a high level of consensus within the US Constitutional Convention.

2. Background

This section will briefly survey the new institutionalism’s focus on rules and the state of theoretical play for constitution-writing procedure with its recent emphasis on consensus. Yet constitution writing’s newly minted consensus theory is undertheorized, and, among other things, has not yet considered the role of procedural rules in achieving consensus as this article sets out to do.

2.1. New institutionalism’s focus on rules

Institutionalism was heralded by Max Weber in the progressive era.¹⁶ Then, institutions were seen as an “enduring collection of rules and organized practices” imbued with meaning and autonomy independent of individuals and “changing external circumstances.”¹⁷ This in contrast to “heroic founders” or great men and women who shaped political history.¹⁸ The “old” institutionalism employed a formal-legal approach in studying institutional rules and procedures as impacting “the functioning and fate of democracies”¹⁹ and determining behaviors. This era of institutionalism spawned many detailed narratives about political institutions, be they administrative, legal, or political.²⁰

Since the late 1980s and early 1990s, political scientists have taken a renewed interest in institutions. New institutionalism studies the relationship between such political institutions and “political agency, performance, and change.”²¹ Although it takes its cue from Weber-era institutionalism in defining an institution as “an enduring collection of rules and organized practices,”²² the new institutionalism focuses more on an institution’s sociological impact, and thus is more operational and illuminating in comparative study.²³ Although it recognizes rational actors and external cultural forces as alternative but not mutually exclusive rationales, it explains political action in terms of “rules, routines, norms, and identities.”²⁴ Such rules shape motivations, behaviors, abilities, and basic rights, and create authority, explain action, imbue legitimacy, organize the polity, enable outcomes, regulate organizational results, organize memory, and facilitate “constitutional patriotism.”²⁵ Rules, or “equilibrium patterns,” are used not only to explain political and historical phenomena²⁶ but also to calibrate outcomes.

This rule-based rubric has been applied in a variety of settings. It has been applied to states and state building,²⁷ the development of civil society,²⁸ constitutional governance,²⁹ comparative constitutions,³⁰ the American presidency,³¹ parliamentary executives,³² political parties,³³ and courts.³⁴ Despite the varied applications in all types of political and legal settings, new institutionalism’s rule-based rubric has never been applied to constitution-writing. At least, that is, until this article. This section now turns to a survey of constitution-writing theory and its recent focus on achieving consensus within the drafting body.

2.2. Constitution-writing procedure’s focus on consensus

The study of comparative constitution-writing processes—or the mechanics of writing a constitution from inception through to implementation—was inaugurated by Jon Elster in 1995 when he identified it as a “blank spot” on the theoretical map.³⁵ Process then came of age when, based on the pioneering processes of Uganda and South Africa—the United Nations issued constitution-writing guidelines in 2009 requiring that UN assistance be designed to contribute to “inclusive, participatory, and transparent” processes.³⁶ Since then, many studies have been conducted on this topic, most of them case studies.³⁷

Quantitative studies are few and far between. Jennifer Widner at Princeton began an intensive study of process in post-conflict constitution-writing covering 194 processes between 1975 and 2002, and recorded dozens of contextual, process, and content variables.³⁸ This project has been continued and expanded by International IDEA in recent years to cover an additional thirty-six processes.³⁹ These two projects have been the most extensive and detailed studies of constitutional process to date. The Comparative Constitutions Project (CCP) also included participatory (misnamed inclusive) processes as part of its study of constitutional durability. The CCP found that public involvement was positively correlated with constitutional lifespan,⁴⁰ and that their measure of participation generally increased a constitution’s life cycle from fourteen to sixty-nine years.⁴¹

In the last ten years, a few have undertaken quantitative studies, including Todd Eisenstadt and colleagues and Gabriel Negretto.⁴² The emphasis of the first wave of studies centered on the relationship between participatory processes and democracy, with some heralding participation as an international human right.⁴³ Eisenstadt and his colleagues linked popular participation in the constitution-writing process to higher levels of post-promulgation democracy. Four years later, however, Eisenstadt and Maboudi pivoted: in a new study, they found that between participation and inclusion (or ensuring that elites from a wide cross-section of constituencies had a seat at the table⁴⁴), “inclusion is what matters” for democratic growth.⁴⁵ In a study of constitutional change in democratic countries published in 2020, Negretto similarly found a positive, significant correlation between inclusion—which he defines as “elite cooperation” between two or more parties—and the growth of democracy.⁴⁶ In contrast, he found no significant correlation between direct citizen participation and democratic growth.⁴⁷ Hélène Landemore’s case study of Iceland’s aborted 2012 crowdsourced draft constitution challenged this outlook by identifying putative democracy and rights-enhancing benefits of higher participation levels.⁴⁸ Despite Landemore’s findings, the current state of play in the comparative constitutions space emphasizes inclusivity over citizen participation in constitution-writing as a key contributing factor to democratic growth. In other words, between making sure the masses participate in shaping and approving the constitution and ensuring that elites have a seat at the drafting table, these studies side with the latter.

Building on Eisenstadt, Negretto, and others, Don Horowitz has recently emphasized the role of consensus among drafters as a key to increasing constitutional democracy. Constitutional consensus, according to Horowitz, is “securing widespread agreement of politicians to any new constitutional dispensation.”⁴⁹ It is achieved not only through inclusive processes à la Eisenstadt and Negretto but through a deliberative process where delegates engage in reasoned arguments.⁵⁰ Consensus is deemed superior to compromise, wherein constitutional actors settle for a “good enough” agreement they might later renege on and regret.⁵¹

Horowitz’s theory of consensus has emerged as the gold standard of constitution-writing and is recognized as desirable in any constitution-writing process.⁵² However, it remains under-theorized. Not only does it not clearly distinguish between consensus and compromise and the relationship between the two, its reliance on both consensus-building and deliberative discussions seems to draw upon the stream of political science devoted to deliberative democracy.⁵³ Yet Horowitz does not engage with (or cite) other deliberative democrats, nor does his theory benefit from many of its recent advances.⁵⁴

The role of rules in Horowitz’s theory is equally under-theorized. He and others hint at the role rules might play, with some scholars taking positions on whether secrecy is advisable.⁵⁵ But it has never been directly addressed by those focused on constitution-writing until this article.⁵⁶ This is possibly because parliamentary rules are considered antithetical to true deliberation conducive to consensus given their use in majoritarian politics.⁵⁷ But as will be seen, the rules of parliamentary procedure relate to much more than just the rules of decision, and this instinct is therefore both short-sighted and overbroad.

This section has sought to provide a very brief primer on the new institutionalism and comparative constitution-writing. Never has the impact of the new institutionalism’s rules been analyzed within the context of constitution-writing, possibly because parliamentary rules with their focus on majoritarianism are seen as antithetical to consensus requiring higher voting thresholds. Yet as illustrated by the next section, this limited appreciation of rules in constitution-writing is short-sighted.

3. Rules that foster consensus

Consensus can be fostered through rules of parliamentary procedure and the physical structuring of a constitution-writing body. Although consensus has been previously thought to be based on deliberation both by Horowitz and the literature of deliberative democracy,⁵⁸ as will be seen in this section, consensus may be achieved through deliberation, but only if there is first a culture of trust. According to the theoretical construct laid out below, procedural and staging rules can facilitate such a culture.

In establishing the groundwork for these claims, consensus must first be defined. In the context of constitution-writing processes, Don Horowitz writes that consensus should attempt to include, at a minimum, those with a violence veto.⁵⁹ But it should do more than this. It should “attempt to embrace all significant groups or else risk later destabilization of the agreement.”⁶⁰ Those who write on multi-party negotiations define consensus along similar lines, though they give it a more substantive connotation. Lawrence Susskin and Jeffrey Cruikshank write that consensus is not necessarily unanimity,⁶¹ but, rather, a “general agreement” wherein “group solidarity in sentiment and belief” is reached.⁶²

Consensus as used here where will take on a broader and more nuanced definition than that employed in previous scholarship. Rather than sounding in parties per se, a broader definition embracing those entities with stakes in the outcome and which are capable of either political or violence vetoes will be used. Additionally, consensus as defined here is contrasted with an agreement reached through horse-trading. Agreements of the latter kind require only compromises that can presumably please no one yet nevertheless pass the correct critical threshold. Compromise stakeholders will momentarily grin and bear it but later regret lost chits. In contrast, consensus represents a true meeting of the minds rather than begrudging compliance. As such, the buy-in of consensus will almost certainly require that at least one or more signatories has undergone a significant change of heart or mind, and frequently both. Given the deep change in drafter sentiment towards the constitutional compact, consensus constitutions are thereby more stable. Thus consensus as used here connotes wholehearted, stable buy-in by stakeholders.

Yet success is not perfection. Rather, the group should “strive for unanimity, but when necessary . . . settle for an agreement that has the support of almost all the members of [the] group.”⁶³ Additionally, consensus constitutions as discussed here may reflect some agreements which were mere compromises, but where the large majority of agreements achieved wholehearted buy-in. Thus rendered and applied to a constitution-drafting body, a “consensus constitution” is a compact which reflects wholehearted buy-in by a supermajority of the drafting assembly on a supermajority of agreements in the document. It is this definition of consensus that will be used in this article.

Constitutional consensus requires more of the drafters and of the drafting process. Wholehearted change of this magnitude—recognizing when one might be wrong, publicly acknowledging it, and changing positions—requires a kind of vulnerability that is rarely found in politics, let alone the intimate setting of the psychiatrist’s office. Vulnerability of this scale will be best facilitated in an environment of safety, where vulnerability can be matched, sustained, and validated.⁶⁴ A rule of procedure that best facilitates this kind of change-producing vulnerability is to keep constitutional negotiations—at least until a draft is produced—behind closed doors. Jon Elster’s research shows that cloistering helps prevent grand-standing during the drafting process.⁶⁵ Meeting in conclave also helps to facilitate the level of safety needed to be vulnerable, change one’s mind, and build consensus.

Regardless of deliberative logos, the level of vulnerability and safety needed to produce consensus requires a corporate culture of trust among drafters. There are several methods—and corresponding rules—that could facilitate a culture of trust within a drafting body. These include increasing interpersonal connections, increasing understanding, fostering respect, and improving promise-keeping. Each will be addressed in turn.

3.1. Building corporate trust through interpersonal connectedness

Increasing interpersonal connectedness, or stickiness, among drafters will increase trust. As drafters’ personal knowledge of one another—and of how each relates to others in the group—grows, so does their affinity and therefore trust. University of Houston Professor Brené Brown’s research on vulnerability demonstrates a connection between group cohesion and vulnerability.⁶⁶ Group cohesion is largely a numbers game. As Malcolm Gladwell, author of The Tipping Point, describes, keeping the size of a corporate group below 150 people is essential for developing a productive and cohesive working unit.⁶⁷ Bigger than that and an individual’s “social channel capacity” makes them incapable of knowing, processing, and managing the different personalities and relationships within a group.⁶⁸ “The figure of 150 seems to represent the maximum number of individuals with whom we can have a genuinely social relationship, the kind of relationship that goes with knowing who they are and how they relate to us.”⁶⁹ Limiting the size of a corporate group below 150, or, at a push, 200,⁷⁰ allows an individual to understand not only others in the group but also how each individual relates to others in the group. Such a dynamic allows for the development of an independent corporate culture, wherein individuals begin to identify with one another as a group rather than by any other key identifiers which accompanied them into the group.⁷¹ Scholars have also indicated that deliberation works best in small rather than large crowds: “[B]eyond a very small number of participants (certainly fewer than twenty) deliberation breaks down, with speech-making replacing conversation and rhetorical appeals replacing reasoned arguments.”⁷²

The twenty-person limit on deliberation is very likely expanded through close association and intimate familiarity with colleagues. Though possible, it is more difficult to dislike, disrespect, misunderstand, or fear individuals one knows well. In a small group, it is feasible to develop relationships of respect if not trust with those who appear or behave or have interests quite different from one’s own. Once the group has been limited, improving opportunities for casual interactions and connections will increase the chances that personal relationships will form. This “stickiness” facilitates not only group identity but a culture of trust within that identity.

Rules that could engender such “stickiness” and interpersonal understanding within a drafting body are three-fold. The first would be to limit the size of the drafting body to no more than 150. This is so that drafters will have the opportunity to know each other well during deliberations and understand the relationship of each individual to the whole. Once the size of the body is limited, increasing informal interactions among members will improve their stickiness and increase the development of individual relationships that cut across natural dividing lines. Informal interactions can be increased by encouraging interactions out of doors. Though informal interactions cannot be entirely engineered through formal “rules” per se, they can be facilitated by planning activities for the group out of doors such as dinners and team-building exercises. Additionally, planning for the deliberative body to meet removed from family and other work obligations will increase the likelihood of such informal interactions and bonds to grow into relationships of trust. Thus the “rules” which might be adopted to facilitate corporate “stickiness” include limiting the size of the body to 150, planning events out of doors, and sequestering the drafting body away from outside distractions.

3.2. Building corporate trust through understanding

A quintessential trait of human experience is to fear what one does not understand. We also cannot trust what we do not understand. Such fears and distrust can result from natural cleavages based on inherent biases⁷³ or cultural, religious, or political differences. For a constitution-writing body, delegates knowing and understanding one another will help them overcome such fears and distrust.⁷⁴ Understanding will help drafters and the body as a whole build bridges over such cleavages and create space for trust to develop. Trust will then have the right environmental conditions to grow as delegates come to know each other’s motives, idiosyncrasies, passions, and backgrounds. More than building trust, such understanding can help drafters identify areas of shared interest and correspondingly avoid overlapping trigger points, facilitating getting to consensus more efficiently.

Rules that will enhance delegates’ understanding of one another can be accomplished through increasing formal and informal interactions. Formal interactions can be multiplied by increasing time spent in plenary discussion, especially early on as drafters come to know one another, allowing the body to create a shared identity or group culture. Identity is created as the drafting body develops its own collective style, identifies objectives, and develops internal stories, even humor. Hosting plenty of plenary sessions early on will also allow delegates to stake out their positions and identify and shape areas of concern and overlapping interests and build natural coalitions based on issues rather than identities. More, delegates will come to know each others’ debating styles and competencies. Jumping too soon into committees may seem efficient—there is work to do, after all—but doing so will likely miss these benefits. It may also create small fiefdoms, as occurred in the Tunisian drafting process.⁷⁵ Scheduling plenary sessions early and often will allow the drafting body to find its own organic rhythm and develop its shared identity and culture.

Improving understanding through informal interactions may also be accomplished through off-site dinners and events as discussed above. Attendance at these functions will increase if the drafting body meets in a remote location, away from pressing everyday concerns. These considerations are not rules per se, but more of how the drafting body is physically and organizationally structured.

3.3. Building corporate trust through respect

The next facilitating feature of corporate trust addressed in this article is increasing delegates’ respect for one another.⁷⁶ While respect is closely related to understanding, there is a distinction with a difference. Whereas understanding as used above relates to coming to know someone’s motivations and other facets, respect as defined here is the high esteem in which one person holds another, usually only after understanding of some part of their character has set in. Concurrently, while understanding creates space for trust to develop by clearing out fears and mistrust, respect is more closely linked to trust, as trust is normally reserved for recipients of respect.

Respect cannot be engineered; it must be earned. Nonetheless, it can be facilitated and inculcated as its outward signs are required for offices and institutions and the very process of constitution-writing itself. Requiring delegates to respect the institution and process of constitution-writing may also provide substance for the genesis of co-delegates’ respect. Procedural rules that can require such respect include requirements of attendance and attentiveness, standing when officers of the body pass, civility, the use of titles, and permitting all to speak before a member speaks again.⁷⁷

Requiring members to attend deliberations and instituting consequences for non-attendance is an outward sign of respect for the body, the process, and other members. Good attendance levels will also facilitate group unity and camaraderie. Concordantly, attentiveness is a sign of respect, and will also improve understanding. Rules that cut down on distractions within the drafting venue—for instance, prohibiting or limiting technology such as cell phones or devices with Wi-Fi on which social media is accessible upon entering the drafting venue—will improve delegates’ ability to listen to and learn from each other. Attention may give way to listening, which begets understanding, which in turn begets respect. Cutting down on distractions while outside the venue, such as being far from home and the attendant freedom from obligations distance brings, would also facilitate more attention for co-delegates.

Rules which show respect for the drafting institution and process include requiring delegates to stand when institutional leaders enter the room, addressing one another by titles, requiring civility, and allowing all to have a chance to speak before speaking again. Several institutions have adopted the practice of standing at attention when leaders enter the room. It connotes respect, if even for the office. Adopting rules regarding titles is also a form of respect for the office that is held, and signals deference and promotes decorum. Civility of language can help inculcate respect by requiring moderation and tempering interactions, creating room for respectful, reasoned arguments. Such civility can be enforced by a chairperson. A final rule which could foster respect in a constitution-writing body is to permit all who wish to speak once on a topic to do so before allowing second speeches.

3.4. Building corporate trust through promise-keeping

Finally, making and keeping promises is another way a drafting body can build a culture of corporate trust. If a constitutional actor makes and then keeps promises, fellow drafters’ belief in a repeat performance will likely increase.⁷⁸ A record of making and keeping promises will build confidence that that individual can be trusted to continue doing so.⁷⁹ Repeat play is thereby encouraged, and trust increased. This can translate to a corporate body, or at least to those individuals within a corporate body who make and then keep promises by means of leaving previous compromises intact. These individuals can help others tempted to undo the past to respect promises and serve their better angels. Such collective promise-keeping, especially assisted by members of the drafting body, will likely improve corporate culture and collective trust in their ability to make further promises and compromises.

A procedural rule that could be crafted to facilitate promise-keeping is to prevent votes from being reconsidered after a certain amount of time. Alternatively, the same outcome would be accomplished by using different rules for different forms. For instance, a constituent assembly could enable reconsideration in one structural form but prevent it in another. Such rules can serve the function of a co-drafter seeking to assist others in respecting past promises. Such collective promise-keeping will allow members to have confidence that the work they do to progress a constitutional text through compromises will not later be undone. If all delegates feel this way, it will improve the corporate culture of trust within the drafting body.

***

The vulnerability that generates true and lasting change is facilitated by safe environments. As applied to constitution-writing contexts, if a constitution-writing body can sustain a safe environment that enables vulnerability, individuals within a group will be able to change positions and get to consensus, or wholehearted buy-in to the constitutional compact. Such vulnerability, especially within the power dynamics of a constitution-drafting body, is only possible where the body has been able to develop a culture of trust. Procedural rules and physical structuring of the body can do much to facilitate the connectedness, understanding, respect, and promise-keeping upon which trust is built in a constitution-drafting body. Next, this article turns to a case study from history illustrating how rules helped to foster a culture of trust leading to constitutional consensus.

4. A case study: The U.S. Constitutional Convention’s consensus was fostered by rules

On September 17, 1787, at the close of the Constitutional Convention, an octogenarian Benjamin Franklin remarked:

[H]aving lived long, I have experienced many instances of being obliged by better information or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. . . . In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such. . . . I doubt too whether any other Convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does. . . . Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best. The opinions I have of its errors, I sacrifice to the public good—I have never whispered a syllable of them abroad—Within these walls they were born, and here they shall die. . . . I hope therefore that for our own sakes as a part of the people, and for the sake of posterity, we shall act heartily and unanimously in recommending this Constitution (if approved by Congress & confirmed by the Conventions) wherever our influence may extend. . . .⁸⁰

Here, Franklin witnesses his own change of heart—his self-righteousness giving way to reasoned argument and the public good in support of the Constitution—in the hopes that his colleagues could reach consensus about the constitutional compact and take up evangelism for it in their home states.

Franklin’s hopes were realized. All but seven, then six of the fifty-five delegates returned to their home states as dedicated proselytes of the Constitution.⁸¹ The level of consensus reached among the delegates allowed the Constitution to be signed “by unanimous Consent of the States present.”⁸² In constitution-writing generally, 89% (forty-nine of fifty-five delegates) drafter buy-in, not to mention unanimous stakeholder buy-in,⁸³ is startling. More, this super-super majority did not simply sign the document; they campaigned for it. They were fully vested. Of the seven who either did not sign or left early out of protest, all seven went on to decry the Constitution publicly⁸⁴ and four voted against the Constitution during ratification contests.⁸⁵ One, notably Governor Edmund Randolph of Virginia who proposed the Virginia Plan and blueprint of the Constitution,⁸⁶ did not sign because of the Constitution’s lack of a Bill of Rights, then became convinced of the error of his ways by fellow Virginians before its ratifying convention.⁸⁷ However, a startling twenty-five of the forty-nine pro-Constitution delegates vociferously championed the document as delegates to state-ratifying conventions,⁸⁸ sixteen published pro-federalist polemics,⁸⁹ and forty-eight out of forty-nine served in the federal government it established.⁹⁰ In all, nearly 90% of the Convention’s delegates signed, polemicized, ratified, or served under the Constitution they created. It was truly a consensus document that ultimately begat consensus fruit when it was ratified in all thirteen states.

Though they returned to their home states as wholehearted constitutional proselytes, it is important to note that while the US Constitution was a consensus document, it was an imperfect one. This in the sense that delegates did not wholeheartedly agree to every provision in the Constitution. While most elements—the basic structure, creating a union, federalism, bicameralism, separation of powers, checks and balances, limited Congressional powers, popular sovereignty, and supremacy—were the product of consensus, a few provisions were simply the result of horse-trading and negotiated compromise. For these, delegates gritted their teeth and bore it, believing the whole greater than the sum of its less attractive parts. This is the overall sense of Madison’s October 1787 debriefing to Jefferson—acceptance of the overall project with quibbles about specific provisions.⁹¹ Despite its imperfections, it retained the attributes of a consensus constitution in which the drafters bought in to the document as a whole.

Interestingly, those provisions born of compromise rather than consensus—representation and taxation of slaves, presidential elections, and popular non-accountability of senators—would not last. Redeeming the Constitution’s infamous slavery calculus required a bloody national atonement and reckoning and three constitutional amendments.⁹² Fixing presidential elections required at least three constitutional amendments and counting.⁹³ Popularly unaccountable senators became accountable via the Seventeenth Amendment.⁹⁴ As developed elsewhere by this author, greater constitutional buy-in likely results in greater medium-term legitimacy and durability, as those in the minority will have been bought in to the constitutional compact and therefore preserve it when their turn in power arrives.⁹⁵ Such medium-term legitimacy may thereafter give rise to a tradition of legitimacy and therefore durability when later generations take the reins.⁹⁶ While this theory finds purchase in the US Constitution’s scorecard, this topic is preserved for further development at another time and project.

The United States’ consensus Constitution was born of a distinct drafting culture that created space for vulnerability. Franklin bore witness to what many others experienced—a change of heart that allowed buy-in to the final compact. Somehow, over the course of the Convention, delegates with fiercely opposed opening views yielded to deliberation and sincerely endorsed the final document.⁹⁷ Some called this process of deliberation and change yielding consensus and concord a “miracle.”⁹⁸

A hallmark of Philadelphia’s consensus document was its rules of procedure. In the Philadelphia Convention, formal and informal rules helped engender a culture of trust which produced consensus. In this, the Philadelphia Convention provides a case study on how rules might be deployed in modern constitution-writing. This section first provides a description of the Convention’s rules and informal constraints and features before articulating how those rules fashioned and facilitated the US Constitution’s consensus.

4.1. The U.S. Constitutional Convention’s rules

The U.S. Constitution was written by a rule-bound crowd. These rules, both formal and informal, held the Convention together and fostered a distinct culture within Independence Hall (then called the State House), one that built relationships between delegates of different regions and walks of life, cutting across cleavages. These rules eventually melded the Convention and their work product together, enabling a true consensus constitution.

The rules adopted by the Constitutional Convention were not without precedent. They drew on the parliamentary procedure of the Continental and Confederation Congresses, initially adopted on September 6, 1774 when the first Continental Congress met in Philadelphia’s Carpenter’s Hall.⁹⁹ This was a natural choice of rules, as almost three-fourths of Convention delegates had also served in Congress at some point, and were thus intimately acquainted with its rules and could easily adapt them in a different setting.¹⁰⁰ It also meant the delegates knew which rules were working and which were not, and adapted accordingly.

The formal parliamentary procedure of the Convention was adopted on the second and third full days of the Convention.¹⁰¹ Unlike Congressional rules, the Convention’s rules required only a quorum of seven states to do business and majority rule. Yet as under the Articles of Confederation, states had one vote each,¹⁰² leveling power disparities presented by different economics, politics, and populations of large versus small and northern versus southern states.

Some rules brought order to the business. Each day was opened by a reading of the previous days’ minutes, followed by the orders of the day before any other business could be introduced.¹⁰³ Each proposal would be repeated upon introduction and go through two readings—the first including a full reading followed by consideration paragraph by paragraph in a second reading—before a vote on the motion.¹⁰⁴ Only one motion could be heard at a time, and would be divided up if need be.¹⁰⁵

Other rules required civility. Speakers were to address the president and members were to stand at the end of each day till the president passed out of the chamber.¹⁰⁶ Additionally, members could speak just once until all had a chance to speak before being allowed to speak again, and then a third time only upon special leave.¹⁰⁷ While the debate proceeded, members were prohibited from having side conversations, passing notes, or copying down the house journal.¹⁰⁸ They were also required to be present in the House so as not to hinder the work of the Convention as was the perennial problem of Congress.¹⁰⁹ Any member could call another to order for unruly behavior, and the miscreant had to make an accounting of their “reprehensible” actions to the full house.¹¹⁰ Committees were not to meet while the House met,¹¹¹ and members of normal committees were chosen by ballot, with the highest vote-getters being awarded committee spots.¹¹² As David Stewart has shown, based on Confederation Congress precedent, members of Grand Committees were almost certainly chosen by each state appointing their own representative.¹¹³ Motions to adjourn would entail no debate.¹¹⁴

Still other rules permitted members to change their votes. Votes could be reconsidered upon unanimous consent, but not unless notice was given the previous day.¹¹⁵ States could also postpone a vote if they needed more time to consider.¹¹⁶ Perhaps the most famous of the Convention’s rules was the requirement of secrecy. Only members could inspect the journal, and no copies were to be taken without leave.¹¹⁷ Even then, nothing was to be communicated out of doors—nothing written, nothing spoken, or “any other communication” to make sure every form was caught.¹¹⁸ This prohibition was largely followed.¹¹⁹ Madison later observed to Jared Sparks that “no Constitution would ever have been adopted by the convention” without the secrecy rules.¹²⁰ This rule above all allowed members to change their minds, as it spared the embarrassment of appearing weak to their constituencies.

Informal rules included those that were observed but not written and those that were the result of the Convention’s happy accidents. Observed, unwritten rules included the rhythm of the Convention, into which it fell almost immediately. The Convention met six days a week, Sundays excepted,¹²¹ usually at 10:00 a.m., with adjournment times varying until, in the last month of Convention (or three-quarters of the way through), adjourning earlier than 4:00 p.m. was prohibited on August 18, and a fixed adjournment time of 3:00 p.m. was settled on August 24.¹²² Another of the informal rules adopted by the Convention was Congress’s permissive practice of meeting in the less-formal Committee of the Whole rather than in Convention proper. This meant that reconsideration rules did not apply, as well as rules about not speaking twice until all had had their say. The rule prohibiting speaking three times on a proposal seems to have been observed despite its inapplicability in this more informal setting.¹²³ Meeting in Committee of the Whole did not obviate other rules, however: the rules that required attendance, attention, and secrecy still applied.

Other informal “rules” were created by happy coincidences that placed physical constraints on the Convention. The first of these was the small size of the drafting body, a by-product of the number of states sending delegates and the reasonable number of delegates each state sent. The federal government did not limit states to a certain number of delegates,¹²⁴ but states essentially seem to observe rules in the Articles of Confederation for Congress which specified that states would have no fewer than two and no more than seven delegates per state;¹²⁵ only Pennsylvania transgressed this unwritten rule with eight Convention delegates.¹²⁶ State legislatures sent representations from twelve states—Rhode Island sent none¹²⁷—resulting in a total of fifty-five delegates being sent to Philadelphia, though not all were in attendance at any time.¹²⁸

Another happy accident was the relative isolation of the delegates, both politically and physically. Although there was some overlap between the membership of both Congress and the Convention (at least three delegates with dual roles returned to Congress in New York during the Convention’s ten-day break while the Committee of Detail met¹²⁹), the Convention had no other task than amending the Articles of Confederation.¹³⁰ This isolated the body from legislative tasks and also restricted them politically from self-dealing, a construct which has been dubbed a “veil of ignorance” by political theorists.¹³¹ Too, the delegates were largely isolated from their families and estates, which gave them more time to focus on the task at hand and to meet the social needs of each other. Traveling far from home also necessitated that most members boarded at one of the few boarding houses in Philadelphia in 1787, which frequently meant that delegates doubled as roommates or housemates, increasing interaction outside Convention hours.¹³² It would not be an exaggeration to say that many delegates worked, dined, and lived with one another during the Convention, increasing delegation interaction both in and out of doors.

4.2. The Convention’s Rules facilitated a culture of trust

These rules, both formal and informal (including happy accidents), helped to facilitate a culture of trust within a set of decidedly disparate individuals. This section will first detail the delegates’ perhaps unappreciated differences before describing how their rules of parliamentary procedure and external forces held the Convention together, creating a unified whole and document from a fragmented body. This because the rules and physical constraints of the Convention created a culture in which delegates could—and did—change their minds. This culture which made lasting change and therefore corporate vulnerability possible was based on trust. Here, the Convention’s formal rules helped to forge a culture of trust by allowing the delegates to meet in conclave, cultivated interconnectedness, encouraged promise-keeping, fostered understanding, and required civility leading to respect. Together, privacy, interconnectedness, promise-keeping, understanding, and civility made the Convention’s whole greater than its constituent parts, and a lasting consensus emerged, wherein almost all delegates truly bought in and thereafter became constitutional proselytes during the ratification contest.

a. The Philadelphia delegates were a disparate body.

The eighteenth-century federal convention looked homogenous, and in fact was composed of White, Anglo-Saxon males. It admittedly did not contain any women or minorities, which American history has rightly spent over two centuries rectifying. Importantly, the delegates had also picked the winning team in the recent “unpleasantries”.¹³³ It was the practice of American revolutionaries to require “associator” oaths (or association with the rebel cause), and to tie the oath to the franchise.¹³⁴ Thus Tories were excluded from politics and from office; only Revolutionaries survived the war politically, and therefore those selected by state legislatures as delegates had all made similar oaths of allegiance to their respective states as opposed to Great Britain. Their shared antipathy towards the mother country and other skin-deep similarities, however, belie the fact that the delegates’ stark differences frequently threatened to tear the Convention apart. Although parties had not yet formed in the nascent state (as in other post-conflict or new states), the fifty-five Convention participants had vastly different political orientations based on nativity, religion, state loyalties and economies, military service, and slavery.

First, they spoke with a myriad of different accents, and delegates would have strained to understand one another. James Wilson’s Scottish brogue and William Patterson’s Irish lilt would have felt foreign to the Mid-Atlantic planters of Virginia, as John Rutledge’s deep-South drawl would have sounded foreign to George Read of Delaware’s shore. It is quite possible that Charles Cotesworth Pinckney from South Carolina spoke with a British accent, educated as he was at Oxford and Middle Temple,¹³⁵ and Alexander Hamilton would have likely retained a trace of the Caribbean in his tones. In all, eight of fifty-five delegates were foreign born.¹³⁶ Then there were differences of class, profession, education, and experience. Alexander Hamilton and Robert Morris were both illegitimate immigrants, whereas Charles Pinckney and Charles Cotesworth Pinckney (an uncle-nephew duo) of South Carolina were the equivalent of southern royalty. Some, especially the southern gentry, were trained to the bar in London’s Inns of Court, including William Houston, John Blair, John Dickinson, Jared Ingersoll, Charles Cotesworth Pinckney, and John Rutledge. Another four delegates studied in foreign universities, including Daniel Carrol (Jesuit St. Omer’s in France), James Wilson (Glasgow, St. Andrews, and Edinburgh), and James McClurg and Hugh Williamson (Edinburgh).¹³⁷ Roger Sherman of Connecticut and Benjamin Franklin of Boston and then Philadelphia (by way of London and Paris) had no formal education, whereas three delegates from Massachusetts—Elbridge Gerry, Rufus King, and Caleb Strong—were Harvard educated.¹³⁸ The youngest, Jonathan Dayton of New Jersey, was a mere twenty-six compared to Benjamin Franklin’s eighty-one years.¹³⁹ Some were unknown on the national stage, having never traveled to Philadelphia,¹⁴⁰ while others—notably Franklin, who had served the country in both England and France and was accepted by the Courts and intelligentsia of both, or Washington, who had led the Continental army to victory and then shocked the world by abdicating power—were internationally famous.¹⁴¹

Another difference which created regional conflict was between the large and small states. “Small” states included Connecticut, New Hampshire, New Jersey, Delaware, Maryland, and (ostensibly, though not present) Rhode Island. These states adamantly opposed any kind of proportional representation as proposed in the Virginia Plan and supported by large states Massachusetts, New York, Pennsylvania, and Virginia, and southern states with growth potential, such as the Carolinas and Georgia.¹⁴² The conflict that ensued gripped the Convention in a dead stalemate for weeks, finally ending with the “Great Compromise” as proposed by the First Committee on Representation wherein the Senate retained equal votes, and the House would be proportional.¹⁴³

Military service was also a demarcating factor. Here, nearly half, or twenty-six of fifty-five delegates, had served in the Revolution.¹⁴⁴ However, a larger difference here was between those who had served in the Continental Army (fourteen) versus state militias (fifteen), with three delegates—William R. Davie, Nicholas Gilman, and Charles Cotesworth Pinckney—having served in both.¹⁴⁵ This latter division mattered most for those who had served in the Continental Army: their service had brought them into closer and more consistent contact with those serving from other states, naturally creating cross-state networks and therefore greater peer-to-peer influence as among delegates.¹⁴⁶ Despite the unit one had served in, wartime service also created a shared language and experience base for those who had suffered the horrors of Valley Forge, the defeats of Charlestown and New York City, and the triumphs of Saratoga and Yorktown. Those who served in state or Continental legislatures had closely followed these events from afar, but had no firsthand knowledge of combat.

Religion was yet another differentiator. Received wisdom dictates that Convention-goers were exclusively Protestant, but reality reflects a more complex religious texture among delegates. The Convention featured one minister and chaplain in the Continental Army (Abraham Baldwin), two Catholics (Daniel Carrol and Thomas FitzSimons), one Deist (Franklin), three Quakers (George Clymer, John Dickinson, and Thomas Mifflin), two Dutch Reformed Church-goers (John Lansing, Jr. and Robert Yates), one Lutheran (Jacob Broom), two Methodists (Richard Bassett and William Few), six Congregationalists, fifteen Presbyterians, and twenty-seven Episcopalians (formerly Anglicans).¹⁴⁷ Such comparative religious diversity for the eighteenth century should perhaps be unsurprising in a country composed of several former political havens for religious exiles.

Perhaps the starkest contrast was between the slave haves and have-nots. Here, the Convention was also nearly equally split.¹⁴⁸ Delegates from Massachusetts and New Hampshire boasted no slaves, it being illegal (Massachusetts) or out of fashion (New Hampshire).¹⁴⁹ Others from the North owned none out of principle. This included Roger Sherman, who called the institution of slavery “iniquitous.”¹⁵⁰ Franklin, who owned a few slaves throughout his life (but freed them before death), was later president of the Pennsylvania Abolition Society.¹⁵¹ William Patterson of New Jersey owned one slave on the eve of the Convention, but quickly liberated him and wrote New Jersey’s emancipation legislation in 1798.¹⁵² Others, such as Gouverneur Morris, came from a slave-owning family but elected out of principle not to own them, and called slavery “a nefarious institution.”¹⁵³ Others from the upper South, like George Mason, condemned slavery as “evil”¹⁵⁴ but owned over 100 slaves, personifying perpetual cognitive dissonance. Edmund Randolph, another large slave owner, was likewise conflicted.¹⁵⁵ Yet others of the Deep South—John Rutledge, Pierce Butler, Charles Pinckney—defended and justified holding property in slaves.¹⁵⁶ The difference between North and South brought the Convention more than once to its knees, with delegates threatening to abandon the Convention and even the Union, prophesying that slavery would bring about the “curse of heaven” upon the nation.¹⁵⁷

In all, the delegates who convened in Philadelphia came from varied walks of life—from different countries, socioeconomic backgrounds, opportunities, and education. They also represented disparate interests in their home states. Slavery represented the biggest difference among delegates, with roughly half owning slaves and half not. Their differences made their concluding consensus all the more startling.

b. The Constitutional Convention’s formal and informal rules brought the delegates together and forged consensus.

If the delegates had such virulent differences, how did they manage civility, let alone produce a Constitution that inspired the “unanimous consent of the states”?¹⁵⁸ The answer lies in their formal and informal rules, which helped produce a culture of trust that produced a consensus compact. First, the delegates met in conclave. Second, due to the Convention’s informal rules or constraints limiting its size and causing multiple, daily interactions among delegates meant that they had the time and opportunity to know one another on a non-superficial level and develop lasting personal and professional relationships of trust. Next, the delegates were forced by their formal rules to be civil and listen to each other, different though they were. Listening led to understanding, and understanding to respect.¹⁵⁹ This deliberation then laid the foundation for durable compromise in the heat of their deepest contest over representation. This compromise was by and large respected,¹⁶⁰ which helped set the stage for further compromises, even over slavery. These developments, whereupon one successful, respected compromise led to another, helped the delegates to develop trust in each other and in the institution as a whole. Such trust—based on personal relationships, promise-keeping, understanding, and respect—enabled a level of comfort such that they could be vulnerable and admit when they had been wrong. Crucially, this allowed delegates to change their starting or middle positions, wholeheartedly onboard the change, and own the final consensus. All these cultural elements as enabled by the Convention’s rules were essential in finally producing a consensus constitutional compact.

As a starting basis, the small size of the drafting body allowed each delegate a comprehensive understanding of one another. Its small size meant that everyone could fit and be heard in the drafting room. More importantly, it meant that delegates had a meaningful opportunity to get to know one another over the course of the summer in a way that developed social cohesion and loyalty. Comprised of fifty-five individuals, but with no more than (forty-three) in the room at a time given varied attendance throughout the summer,¹⁶¹ the Philadelphia Convention was well within Gladwell’s 150-person limit for group cohesion.¹⁶² The small size of the Philadelphia Convention meant that each had time and opportunity to interact many times over with every other delegate during the course of the summer. They got to know each other’s ideas and passions as well as sticking points.¹⁶³ They could not easily misunderstand one another as the Convention wore on.

The isolation of the delegates away from friends and family also allowed for more social interaction out of doors. Those delegates local to Philadelphia frequently hosted.¹⁶⁴ Those from out of town enjoyed their hospitality, and everyone enjoyed the collegiality and libations of the City Tavern, located a block from Independence Hall.¹⁶⁵ Many also regularly attended church together at Christ Church, located three blocks from Independence Hall, where Washington, Franklin, and Robert Morris had pews.¹⁶⁶ Many also boarded together, creating even more regular, informal contact.¹⁶⁷ The interaction of delegates out of doors helped to kindle and develop friendships. As evidence of these newly developed friendships, Madison’s correspondence expanded far beyond Virginia after the Convention, as did that of other delegates.¹⁶⁸ Through close and frequent interaction in and out of doors, the delegates came to know each others’ minds and personalities intimately and developed personal relationships with every other delegate.¹⁶⁹

The final ingredient in the Convention’s interconnectedness was having the time and opportunity to develop personal relationships with each other. These elements were provided for by the informal rules or external forces at work on the delegates. Time, as Horowitz notes, can allow drafters to “understand each other’s fears, aspirations, and habits of thought.”¹⁷⁰ The delegates spent seven weeks deliberating (and negotiating) in plenary session before their first major compromise, and another two before a first draft of the Constitution was produced. This runway allowed the delegates to compromise, yes, but also enough time to establish a rapport as described by Horowitz¹⁷¹ and a culture of respect and trust.

Further, the Convention’s formal rules of parliamentary procedure required the delegates to be civil and to listen to one another. Many of the rules that were passed the second day of the Convention required an outward showing of civility, such as addressing the president rather than one’s peers, standing till the president left the room, and calling one another to order for bad behavior. These formalistic requirements were coupled with rules that forced the delegates to listen to one another. They were allowed no distractions, including receiving or passing notes or side conversations. Attendance was required. They could also do no other work for the Convention during plenary sessions, including meeting in committees. Too, they had to “play nice”: they could speak only once per topic until everyone had a turn.

These rules were effective. Many delegates—not just Madison—took notes, showing rapt attention. Not all have survived, but extant papers show that as many as twenty-one delegates took notes in some fashion, either on separate parchments or on their copies of the Committee of Detail report circulated on August 6.¹⁷² This attentive listening over the first weeks of the Convention when it met almost continuously in plenary session begat understanding.¹⁷³ Too, the outward show of civility gave way to respect. These three elements—listening, understanding, and respect—allowed for true deliberation. Philadelphia was a meeting of the minds. There, the delegates spoke, listened, and understood—eventually—out of respect for one another’s ideas. This translated into policies, constitutional texts, and the delegates themselves being shaped and (mostly) made better through their interactions one with another. The delegates deliberated. As proof in point, Madison remarked in 1830 to Jared Sparks that the delegates’ expressed positions “were so various and at first so crude that it was necessary they should be long debated.”¹⁷⁴

Finally, the Convention’s rules also facilitated promise-keeping. The deliberation in which the Convention engaged was not pure; it involved traditional negotiation, in which delegates vied strategically to gain the most they could for constituents in their home states. These conversations were also not free from coercion as prescribed by deliberative democracy. Sometimes, delegates who presented impassioned pleas for state interests engendered reasoned arguments in response. Case in point were discussions about slave interests, wherein John Rutledge and Charles Cotesworth Pinckney threatened that the Deep South would leave the union (by not ratifying the Constitution) if their slave interests were not protected.¹⁷⁵ Several northerners responded with passionate but reasoned moral arguments against the slave trade and slavery.¹⁷⁶ The result was the compromise allowing Congress to end the slave trade in 1808.¹⁷⁷

Because of their ability to deliberate and negotiate (mostly) with respect one for another, when the delegates encountered obstacles, they were able to compromise. This is seen especially through the fight over representation. Though the Convention had been deadlocked for weeks over the issue, they were able to respect the First Committee on Representation enough to accept its compromise, bitter though it was, especially for the large states. The compromise rankled many, but it, too, was respected, and this promise-keeping built trust, allowing the Convention to meet similarly difficult challenges with increasing fluency and confidence.

A result of the delegates’ closeness and their understanding, respect, and ability to keep promises was a culture of trust where vulnerability became possible. This level of vulnerability—to safely change one’s minds, acknowledge it, and onboard the change—became key to the Convention’s successive compromises and eventual consensus. As Madison later reflected, delegates made “mutual concessions, & frequent changes of opinion,” and there were few delegates “who did not change in the progress of discussions the opinions on important points which they carried into the Convention” and could thereafter “admit,” at the close of the Convention, “this change as the enlightening affect of the discussions.”¹⁷⁸ Overall, almost all delegates changed their opinions as a result of the Convention’s deliberations, and had been able to admit and accept this as “enlightening.”¹⁷⁹ A necessary predicate to this “enlightening” were the rules allowing the Convention to re-vote, more leniency when acting under the Committee of the Whole, and the secrecy rules, which kept the Convention in conclave. Being outside the public eye meant that the delegates did not need to grandstand and could back down when needed. There was no posturing here, no need to dig in heels.¹⁸⁰ Yet while these conditions were necessary for position changes, they were not sufficient. The key here was the delegates’ closeness, which opened up a unique safe space in which delegates could be that breed of humans rarely seen in politics—vulnerable.¹⁸¹ Because vulnerability was safe, they could change, admitting at appropriate intervals when they had been wrong.¹⁸² This proved invaluable in reaching consensus, as delegates could not only compromise but also admit that their previous positions might have been mistaken and truly buy in to their constitutional commitments. Delegates could therefore abandon their starting or middle positions and accept the Constitution’s results as not “merely different from initial preferences but actually better.”¹⁸³

***

As can be seen here, constitutional consensus in the Philadelphia Convention of 1787 required the delegates to be vulnerable enough to change their minds and buy in to the compact. The level of safety that vulnerability requires was created in Philadelphia by virtue of the formal and informal rules or physical constraints—meeting in conclave, a small deliberation body, close physical proximity in and out of doors without outside distractions, and rules of civility which required delegates to listen to each other and keep promises. Plenty of compromises and horse-trading were baked into the final Constitution, but delegates adopted it as their own in the end. All but three of thirty-nine remaining delegates—and a majority if not a unanimity in each state—signed the final document. As Franklin, the great mediator of the Convention, said, he had been able to put aside his differences, because he was “not sure[] that it was not the best.”¹⁸⁴ Franklin verbalized the sentiment of the Convention. With seven exceptions, they left differences behind in the drafting room and emerged unified on behalf of the Constitution. Madison later wrote to Jefferson that “the degree of concord which ultimately prevailed” at the Convention was “a miracle.”¹⁸⁵ Something had happened to transmute the disparate group into a unified whole, and that something had everything to do with the culture of trust engendered by the Convention’s formal and informal rules and constraints.

As modern academics and practitioners seek to understand consensus constitutions and the kind of deliberative processes and the corporate cultures that produce them, the US process provides a timely case study. Perhaps unlikely considering its age and seeming homogeneity of its drafters, but apt nonetheless. The framers of the US Constitution reached a high level of consensus, or wholehearted buy-in to the ultimate constitutional compact, the kind of which is lauded by modern constitution-writing theorists. This was accomplished through procedural rules and structural constraints on the drafting body that produced a culture of trust. This level of trust created conditions conducive to vulnerability such that delegates felt comfortable changing positions, permitting them to buy in to the ultimate constitutional compact.

5. Conclusion

The impact of procedural rules has never been studied in the context of constitution-writing, where consensus among drafters has emerged as the lodestar. Yet procedural rules facilitating interpersonal connectedness, understanding, respect, and promise-keeping can help to create a culture of trust that facilitates consensus. Corporate trust is necessary for drafters to change positions and buy in to the ultimate constitutional compact. The US Constitutional Convention provides an apt case study in the role that rules and physical constraints can play in producing a very high level of consensus. The formal and informal rules in Philadelphia of 1787 helped facilitate personal relationships, civility, understanding, respect, and keeping promises inherent to durable compromises that created a distinctive culture of trust which, over an appropriate amount of time, eventually bred consensus.

Footnotes