Prof. Carrie Menkel-Meadow Speaks To The OC Bar ADR Section About Negotiating The US Constitution

In The Room Where It Happens . . . 

Howard Chandler Christy's Scene at the Signing of the Constitution (1940). Wikipedia article. Public domain.

        Prof. Carrie Menkel-Meadow, Distinguished and Chancellor's Professor of Law at UCI, spoke to the ADR Section of the Orange County Bar on February 24, 2020, about "Negotiating the American Constitution." Part of the genius of the 55 delegates to the Constitutional Convention was demonstrated by their devotion to crafting ground rules and decision rules before they turned to substantive debate and negotiation. 

        The process rules included: (1) dividing leadership among Washington, acting as a neutral chair ("President"), Franklin, acting as a process trouble shooter, and Madison, acting as agenda manager, scribe, reporter, and secretary; (2) confidentiality; (3) limiting speakers to speak only twice on a subject (and waiting till all others had their say before speaking a second time);  (4) attendance rules; (5) assignments for committee and task groups; (6) lack of attribution of votes to particular delegates by name; (7) majority rule on most matters (with 9 of 13 states required to ratify).

        While not every procedural rule was equally important, it is impossible to imagine how the Constitution as we know it could ever have been drafted if the procedural rules required unanimous rather than majority vote. Confidentiality and anonymity of votes were also extremely important, as both rules helped to build trust, avoided public interference and disparagement, and enabled delegates to change positions.

        Prof. Menkel-Meadow concluded on an optimistic note: the Constitution, with amendments, and the government structures created, have proven to be highly durable, lasting more than 200 years.¹ At the same time, we can trace some of the current challenges, such as problems with the voting system, back to the very negotiations, linkages, and compromises that resulted in our Constitution. 

        A copy of Prof. Menkel-Meadow's article entitled "Negotiating the American Constitution (1787-1789) Coalitions, Process Rules, and Compromises," a chapter in Landmark Negotiations from Around the World: Lessons for Modern Diplomacy (Emmanuel Vivet, editor, Intersentia 2019.), can be downloaded free of charge from SSRN by clicking here. You will need to open an account with SSRN, which, however, is free.

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1_{For a recent critical discussion of the Constitution, see the October issue of Harper's Magazine, "Do We Need The Constitution? "- a forum with Donna Edwards, Mary Anne Franks, David Law, Lawrence Lessig, and Louis Michael Seidman.}