What are the elements uniting (or distinguishing) entities that in different jurisdictions and historical periods, have been officially called General Congresses, Constituent Parliaments, Constituent Congresses, National Constituent Assemblies, Constitutional Assemblies, Assemblies of Revision, Parallel Constituent Assembles, or Conventions, but at the same time are generically labelled by political actors and academics as ‘constituent assemblies’? In attempting to answer that question, the objective of this chapter is threefold. First, to describe the main features of the type of institution that can be accurately identified as a constituent assembly. This requires a conception that is broad enough to cover most constitution-making bodies that would be normally labelled as ‘constituent assemblies’, but specific enough as to discriminate against entities that lack certain features. I propose that, while constituent assemblies may be understood in terms of their form or function, it is the nature of their power what distinguishes them from other constitution-drafting mechanisms. My second objective is to enquire into the limits of the power of -a properly understood- constituent assembly. Third, and relatedly, to consider the effects that the attempt to constitutionally regulate such an entity has on its ‘constituent’ nature.

In the 1820s and 1830s, state governments acted decisively in the face of federal paralysis to build their own transportation and communication networks. Because they possessed legal and political sovereignty, states could create the institutional blueprints for development by legislative fiat, capitalizing on their unique charter powers to establish a financial-infrastructure complex whose reach extended to global capital markets. Moreover, infrastructure promised to underwrite the political dream of a world without taxes. After all, if infrastructure could be debt financed with little up-front cost and creditors paid from the proceeds, then unpopular property taxes might be avoided altogether. But the debt-fueled infrastructure plan was precarious; the debt-fueled infrastructure boom of the 1830s precipitated a financial panic in 1837. Although the flow of credit resumed soon after the Panic, there was soon a wave of sovereign debt defaults and several outright repudiations. This led to legal reforms at the state level meant to curtail government involvement in infrastructure. For several decades, state courts were left to sort out the appropriate scope of public action in the infrastructure field by deciding whether governments were taxing for a truly “public purpose” when they invested in for-profit infrastructure ventures.