Notes

1 On the 1639 Fundamental Orders of Connecticut see, for instance, Kay, 1984, p. 134 n.112.

2 Such historical remarks represent one of the main objections to the constitutional theory in the West as was developed by James Tully in his survey of 400 years of

Violence and constituent power in America 131 constitutional practice with special attention to the American Aboriginal ques­tion, see Tully, 1995.

On the issue of American Slavery in the origins of the United States see, among many others, Berlin, 2004; Feagin, 2014; Fehrenbacher, 2001; Horton and Horton, 2005; Mason, 2006; Pettigrew, 2007; Richards, 2000.

A good summary on the position of the Indian Tribes within the U.S. Constitutional system and its evolution may be found in Breda, 2018, pp. 142­148.

On the social conflicts during the creation of the American Republic see, among many others, the works of Charles Beard (1964) and Merrill Jensen (among them see Jensen, 1964, 1967, and 1976). See, more recently, the contribution of Terry Bouton (2007).

The only State that adopted in its new constitution a one-chamber legislature besides Pennsylvania was Georgia but it is likely that such a decision was more related to the circumstance that Georgia already had one chamber as a repre­sentative body under the British rule than to Pennsylvania’s revolutionary influ­ence (Palmer, 1968, p. 358). In fact, Pennsylvania itself had only a one-chamber legislature during the colonist regime in a way that one can doubt if also some of the Pennsylvania revolutionary constitutional arrangements were not somehow rooted in the previous political tradition.

Madison wrote on Rhode Island: “a large sum has been struck down and made a tender, and coin. The consequence is that provisions are withheld from the Market, the Shops shut up... a general distress and tumultuous meetings.” See Madison, 1979, p.

Among the oceanic literature on the Shays’ Rebellion see Fritz, 2008, pp. 80-116; McDonald, 1968, pp. 103-107; Richards, 2002, and Szatmary, 1980. On the consequences of the Shays’ Rebellion for the creation of the Federation and the calling of the constitutional Convention at Philadelphia see Elster, 2012, p. 9. Ackerman (1998, p. 44) in a different position, minimizes the role of the Rebellion as a catalyzer of the constitutional Convention.

On James Madison’s theory of the faction and its influence in American constitu­tional creation see Richards (1992-1993).

Johnson to Iredell, December 9, 1776, quoted in Wood, 1998, p. 477. Charleston Columbian Herald, September 23, 1785 quoted in Wood, 1998, p. 477.

Jay to Hamilton, May 8, 1778, quoted in Wood, 1998, p. 477.

Johnson to Iredell, December 9, 1776, quoted in Wood, 1998, p. 477. Madison to Jefferson, October 17, 1788 quoted in Wood, 1998, p. 410.

On this point see also Jacobson (2014, p. 9) and Levinson (2004, p. 468). Levinson considered that the “1787 Constitution could itself be viewed as a secessionist act.”

It should be mentioned that Beard’s thesis in the hard sense of finding a direct correlation between the Philadelphia delegates’ economic interest and the deci­sions adopted while drafting the constitution had been rehabilitated in the last decades of the twentieth century and the beginning of the twenty first with the works of McGuire and Ohsfeldt (McGuire and Ohsfeldt, 1984 and McGuire, 2003).

17 According to Article XIII of the Confederation and Perpetual Union “the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.” Article VII of the original Constitution provides: “The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the same.” On the break of Article XIII of the Confederation by Article VII of the 1787 U.S. Constitution draft see Ackerman, 1993, pp. 41-42 and 168; Ackerman and Katyal, 1995, pp. 470-480; Kay, 1987, p. 68. Van Middelaar, in comparing the creation of the American Federation with the European integra­tion process, offers a candid reading on the passing of Article VII of the Federal Constitution according to which ”it is curious that the revolutionary Article VII was so little disputed” (Van Middelaar, 2013, p. 85). However, the apparent lack of controversy concerning such an article that might have been appreciated during its approval at the Convention does not minimize the criticism of the departure from the Confederation’s rules of amendment during the ratification process and after, to the extent that the question regarding the position of the States vis-a-vis the Union would be central throughout the American history of the nineteenth century until the Civil War and the Reconstruction. For an argument on the adjustment to the law of treaties of the Philadelphia Constitutional Convention’s departure from the rules of amendment under the Articles of the Confederation see Amar, 1994, p. 465. Amar’s approach, following Madison’s arguments, holds that according to the law of the treaties, the breach of the Articles by some States allowed others to declare them void.

18 There was a State, however, in which a referendum on the Federal Constitution was held and the draft was rejected: Rhode Island. See Ackerman and Katyal, 1995, p. 527.

19 Pennsylvania’s Constitution required a six-month pause between the time amend­ments were proposed and the time a Convention would be elected. The Federalists pushed forward with a plan to hold an election within nine days in order to catch their opponents by surprise. See Ackerman and Katyal, 1995, pp. 517-519 and 525.

20 A constitutional debate developed in the last decades more centred in trigger­ing the Article V U.S. Constitution might be found in the reaction to the U.S. Supreme Court decision Citizens United v. Federal Election Comm’n 558 U.S. 310 (2010) seeking to override the Court’s decision, a case holding that cor-

Violence and constituent power in America 133 porations may spend unlimited amounts of money in federal elections as long as they do not coordinate their spending with candidates (Albert, 2019, pp. 177-178). However, no constitutional change according to the opposition to Citizens United has taken place neither under a formal constitutional amend­ment nor under a different constitutional adjudication (see Jackson, 2015, pp. 584-590).

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