in Richard Albert, Nishchal Basnyat, Menaka Guruswamy (eds), Founding Moments in Constitutionalism (Hart Publishing 2019)
Lawyers across the globe routinely talk about what the ‘founding fathers’ or the ‘framers’ of their constitution (or a founding treaty) meant, expected, intended and so on. The point of this paper is that some of the founding fathers talk in legal contexts is confused, because it refers to people who did not make the constitution. I help to dispel the confusion through analysis of what does it mean to be an agent behind making a constitution as law – what does it mean to be a constitution-maker.
This paper presents a general theory of legally authoritative agency in constitution-making, with a particular emphasis on group action. With the analytical toolkit in hand I consider the cases of Australia, Canada and the United States. I identify who was the constitution-maker there and I look at some possible ways of justifying legal uses of historical materials, which are unconnected to the constitution-maker.