|The First State Constitutions, 1776–1783
The year 1776 marks the birth of the American nation. It also signals the birth of constitutional government in the United States and in the world at large. For this was the first time in the world’s history that a large group of communities—now thirteen independent and sovereign States—had begun the formation of their own governments under written constitutions. This was also the year in which the Articles of Confederation, our first national constitution of sorts, was written. Many of the colonial leaders who participated in the creation of these first constitutions—James Madison, George Mason, John Rutledge, Charles Pinckney, John Dickinson, Robert Morris, Benjamin Franklin, Gouverneur Morris, and others—would later meet together in Philadelphia to draft the Constitution of the United States. In these respects, the writing of these constitutions was a dress rehearsal for the Federal Convention of 1787 and a valuable experience in the art of constitution-making.
To a large extent, the main pillars of the new governments were adaptations of the old colonial forms. Yet the task of writing the State constitutions was formidable. The participants were novices at drafting a body of fundamental laws, and most were unfamiliar with the mechanics of constitutional government. Added to this, the nation was at war, and many of the best minds were absorbed in the affairs of the Continental Congress and the war effort. Many of the State constitutions that emerged from the first phase of this endeavor (1776–1777) were thus seriously flawed, and all contained structural imperfections and awkward phraseology requiring subsequent revision. On the whole, however, it was a remarkable achievement, and a number of constitutions lasted longer than even their authors expected. No doubt the most important factor leading to the surprising success of this first effort was the rejection in all of the States of radical and visionary schemes of government and the general acceptance of established constitutional principles and inherited rights. There was little about these constitutions that was truly revolutionary, other than the fact they were written.
Because of the important role he played in the Philadelphia Convention of 1787 and in the first Congress of 1789, James Madison has sometimes been called the “Father of the Constitution” and also the “Father of the Bill of Rights.” But to John Adams belongs the title “Father of American Constitutionalism.” Deeply read in political and legal theory and ancient history, he was the most knowledgeable constitutional lawyer in all of New England and perhaps in all of the colonies. When the great Tory statesman and humanist Viscount Bolingbroke died in 1751, his reputation suffered a sharp decline, notwithstanding Alexander Pope’s widely shared belief that Bolingbroke was one of the most brilliant thinkers England had ever known. “Who now reads Bolingbroke?” asked Burke. Jefferson read Bolingbroke and thought his style reached perfection. But John Adams could truthfully say he had read the works of Bolingbroke three times, especially The Idea of a Patriot King (1738). This was Bolingbroke’s much neglected repudiation of Machiavelli’s The Prince—in defense of political morality and limited constitutional government. Adams seems to have read every important work on government. His mastery of the great political classics was unequaled in the American colonies.
At a meeting in Philadelphia in the fall of 1775, Adams was persuaded by Richard Henry Lee of Virginia to put his constitutional ideas down on paper. Adams obliged his friend in the form of a letter outlining the main features for a constitution, and Lee carried it home to show others. It was soon widely read and distributed in Virginia. The scheme proposed by Adams was only a sketch, however, and he left the details for later consideration. He advocated the free choice of a House of Commons by the people, with the upper house chosen by the lower and the Governor appointed by both houses. The Governor’s powers were to be extensive, including a veto and command of the military. Adams also suggested that, when peace came, then would be the opportune time to have the people elect both the Governor and the members of the upper chamber.
Later that same year, Adams gave a fuller expression to these ideas in a pamphlet entitled “Thoughts on Government,” which was issued anonymously and widely distributed throughout the colonies. Adams’s reputation as a constitutional expert spread rapidly, and in January 1776 the North Carolina delegates in Philadelphia were authorized to seek his advice on State government. On May 10, 1776, the Congress approved Adams’s resolution calling upon all of the colonies that had not already done so to adopt new constitutions. Adams was also the driving force behind the constitution of his native State. Written in 1780 and largely the handiwork of Adams, the Massachusetts Constitution proved to be the best of the early State constitutions. It was the first to employ a true check and balance system.
Most of the early State constitutions were written under difficult conditions and in haste. This is especially true of the first two constitutions—those of New Hampshire and South Carolina. They were drafted in January and February respectively, six months before the Declaration of Independence was proclaimed, and were viewed at the time as temporary expedients that might later be withdrawn should England and the colonies reach an accord. Both constitutions lasted only a few years.
Virginia and New Jersey also drew up their constitutions before independence, but these constitutions were drafted under more favorable circumstances and were generally regarded at their inception as permanent instruments of government. Of the remaining nine States, Rhode Island and Connecticut decided to retain their charter governments, and Massachusetts elected to keep its charter temporarily. This left six States without a constitution: New York, Pennsylvania, Delaware, Maryland, North Carolina, and Georgia, all of which wrote their fundamental law after the Declaration of Independence. The whole process took sixteen months, beginning with New Hampshire’s rudimentary instrument in early 1776 and ending with New York’s more sophisticated product, which was adopted on April 20, 1777. That same year, Vermont drafted a Constitution, but the State was not admitted into the Union until 1790.
In no State was the new fundamental law the work of a specially elected constitutional convention; nor were any of these first State constitutions submitted to the people for approval. The first constitution submitted to a popular vote was the abortive Massachusetts Constitution of 1778, which was drafted by the legislature but later rejected by the people. The Massachusetts Constitution of 1780 became the first that was both prepared by the convention method and approved by the people. It thus stands out as the first written constitution resting on a thoroughly republican base, and in this respect it set the standard for the Federal and State constitutions that were to follow.
In the period between 1776 and 1783, four different procedures were followed for the creation of our first State constitutions:
(1) Constitutions framed by purely legislative bodies which had no express authority from the people to write a constitution and never submitted their handiwork to the people for approval. These were the constitutions of New Jersey, Virginia, and South Carolina, all of which were adopted in 1776. South Carolina adopted a second constitution in 1778.
(2) Constitutions framed by purely legislative bodies, but with express authority conferred upon them for this purpose by the people—without submission to the people for approval, however. These were the constitutions of New Hampshire, Delaware, Georgia, New York, and Vermont.
(3) Constitutions framed by purely legislative bodies but with express authority conferred upon them for this purpose by the people and formal or informal submission of the constitution to the people—Maryland, Pennsylvania, North Carolina, South Carolina (1778), and Massachusetts (1778). Among these, only Massachusetts formally submitted its constitution to the people.
(4) The framing of a constitution by a convention chosen for this purpose only, with the subsequent submission of the Constitution to the people for approval. These were the States of Massachusetts (1779–1780) and New Hampshire (1779–1783) in their second attempts at establishing an acceptable fundamental law.
Some of these early constitutions made important contributions to the art of government which the Framers of the American Constitution later adopted. Maryland’s constitution provided for the indirect election of the upper house. Here the electoral college, which Mason had suggested in Virginia, made its debut in American politics. The Constitution of New York was the first to provide for popular election of the Governor and to give the executive branch a reasonable degree of power and independence. Here was laid the foundation for the modern presidency under the American Constitution. And the Massachusetts Constitution of 1780, as we noted before, provided the model for a separation of powers based on a system of checks and balances. The Framers also incorporated this concept into the Constitution of 1787.
On the other hand, some of these first constitutions also contained major defects. In some ways, the Framers of the American Constitution profited as much from these mistakes as they did from the more successful efforts. No doubt the peculiar constitution of Pennsylvania was the worst of the lot and, above all, pointed out the risks of eccentricity and novelty. Two of the assembly’s prominent leaders were mathematics professors. Dominated by radicals, “not one-sixth of whom,” reported one observer, “has ever read a word upon constitutional topics,” the assembly threw aside the advice of John Adams and ignored its colonial charter. Benjamin Franklin presided over the debacle. Franklin was a man of many talents, but it would seem that political science was not one of them. The constitution of unbalanced government that emerged from these proceedings reflected several of his questionable political ideas, including a unicameral legislature and a plural executive. The legislature was a single chamber. The executive consisted of a council of thirteen whose president and vice president were chosen by the council and the all-powerful legislature. They were mere figureheads presiding over a council that was virtually powerless. Thus, there was neither a Governor nor an upper house. The most bizarre feature of the Pennsylvania constitution, however, was the provision prohibiting any change for the first seven years. Thereafter, and at seven-year intervals, a council of censors was to be elected to review the operation of government and inquire whether the constitution had been violated. If the censors thought an amendment was needed, they had the power to call a State convention. The constitution met with a storm of protest and was soon an object of ridicule and jest among the State’s more conservative citizens. Observers from other States shared these views and John Adams condemned the document as a sham. A member of Congress from North Carolina wrote home ridiculing the Pennsylvania Constitution as “a beast without a head.” The constitution so convulsed the State that the government was barely able to function for more than a decade. Franklin, however, was so pleased with the constitution that he carried a copy of it to France to show to Turgot, Condorcet, and other admirers. In 1790, the French Constituent Assembly made the disastrous decision to adopt the Pennsylvania plan for a unicameral legislature. That same year, Pennsylvania unceremoniously abandoned its 1776 constitution in favor of a new one modeled after the other State constitutions, with a bicameral legislature and an independent Governor.
The defects in other State constitutions were numerous and varied, and in some cases fatal. Remarkably, four of these first constitutions lasted more than half a century. Although the North Carolina constitution gave the Governor too little power, it lasted the longest—seventy-five years. New Jersey’s constitution—largely the work of two Presbyterian clergymen, Rev. Jacob Green and Dr. John Witherspoon, the noted theologian and President of Princeton college—remained in effect for sixty-eight years. Maryland’s well-balanced constitution, perhaps the most conservative from the standpoint of property qualifications for holding office, was singled out by Hamilton in Federalist No. 63 as among the best, and it lasted for sixty-five years. Virginia’s constitution, also generally regarded as one of the better achievements, lasted for fifty-four years. It was written by George Mason, who also drafted Virginia’s famous Declaration of Rights. The Charter of Connecticut served as the State’s constitution for forty-two years, and that of Rhode Island for no less than sixty-four. New York’s constitution, unfortunately marred by two innovating devices (a Council of Revision and a Council of Appointment), nevertheless escaped unscathed from a convention in 1801 and, though burdened with many deficiencies, managed to survive for forty-five years. Its principal architect was John Jay. The Massachusetts Constitution of 1780, by far the most successful of all the State constitutions, has been subjected over the years to numerous amendments, mostly dealing with the suffrage. Still in force, it is the oldest in the land, and stands today as a fitting tribute to the political genius of John Adams.
In general, our first constitutions contained three major weaknesses, all of which were known and avoided in the Philadelphia Convention of 1787. First, they all failed to provide for an adequate system of separation of powers. Most of them established three separate and distinct branches of government, with no overlapping personnel; but the men who drafted them thought in terms of a “pure” separation and did not understand the need for checks and balances. As a result, political power tended to concentrate in the legislatures, which in turn often ruled in an arbitrary manner, tyrannizing over the other branches and oppressing the people, particularly disfavored minority groups. Jefferson addressed the problem in his own State in his Notes on Virginia (1784). This concentration of government power in the popular assembly, he charged, “is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not a single one. One hundred and seventy-three despots [the number of the Virginia legislators] would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice—as little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of the government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
Second, all of these first constitutions, with the exception of New York’s, failed to establish an independent executive. In most cases, governors were appointed by and answerable to the legislatures, and their powers were severely restricted. Even those governors who enjoyed a semblance of authority found it difficult to protect their office because they lacked sufficient means by which to check legislative encroachments.
Third, all of these first constitutions lacked a provision establishing the constitution as the supreme law. One factor contributing greatly to the problem of legislative supremacy in the period between 1776 and 1787 was the common assumption that legislators were the sole judges of their own constitutional powers. Too few lawyers of the day believed that a State court had the right to declare a statute invalid on the ground that it violated the State constitution.
Finally, it is worth noting that the constitutions of four States—New York, New Jersey, Virginia, and North Carolina—contained no express provisions providing for their amendment. The assumption seemed to be that such provisions were unnecessary since the people were thought to have the sovereign right to change their form of government. How they were to exercise this right, and what the procedures would be, remained a mystery. In two States, Maryland and Georgia, changes in the constitution were expressly authorized through the legislature only. The constitutions of Delaware and South Carolina authorized two methods of amendment—through the legislature and by convention. Massachusetts and New Hampshire, on the other hand, specified the convention method only. The means by which the people might change their constitution thus varied from one State to the next, and in more than one State this basic ingredient of the republican principle was either neglected or compromised.
Not all of the earliest constitutions contained bills of rights, but the examples set by such States as Virginia, Pennsylvania, and Massachusetts set the trend for future constitutions. The Virginia Declaration of Rights, drafted by George Mason, was the most widely hailed and served as the favored model for the rest of the nation. The provisions of this Declaration (and the other bills of rights) may be traced to Magna Charta, the Petition of Right, and the English Bill of Rights. It set forth the usual requirements regarding trial by jury, cruel and unusual punishments, search warrants, freedom of the press, and the subordination of the military to civil government. Separation of Powers was also listed as a right of the people, and it was further stipulated that all men who could demonstrate that they had a permanent common interest with the community—that is, were property owners—should be given access to the ballot. Another important provision guaranteed freedom of religion. This was added at the insistence of Patrick Henry and James Madison.
Like the Declaration of Independence that Jefferson wrote shortly thereafter, the Virginia Declaration of Rights asserted that all authority is derived from the people, who have the inalienable right to reform the government if it fails to provide for their safety and happiness. As we noted earlier, however, “the people” of Virginia had not authorized the assembly to write either a new constitution or a declaration of rights, and the documents were not even submitted for popular approval. Moreover, the Virginia legislature represented the extreme opposite of the “one-person, one-vote” theory of representation. Following the English practice of geographical representation, Virginia allowed each county, whatever the size of its population, to send two members to the capital in Williamsburg, which gave the people in the aristocratic Tidewater section of the State a distinct political advantage over inhabitants in the western part of the State. Such sectional inequalities existed in other States as well, particularly Maryland and South Carolina.
By the words “the people,” then, the Virginians meant the gentlemen freeholders, not the entire population equally apportioned. Indeed, a complete democracy on a grand scale was widely regarded throughout the colonies as a threat to law and order. The example of Pennsylvania, which abolished all property qualifications for voting and holding office and produced a document making a mockery of constitutional government in the eyes of some onlookers, confirmed the suspicions of many colonial leaders that an unrestrained democracy would drive good men out of public office and turn the affairs of state over to pettifoggers, bunglers, and demagogues. They wanted representation of brains, not bodies—and for a number of years the best minds in the country dominated American politics. Indeed, this probably worked to the advantage of the country in the long run, for it is questionable whether the entire public in 1776 was capable of exercising all of the responsibilities of self-government. No doubt the Virginia Constitution and Declaration of Rights, as well as the American Constitution of 1787, would have fallen even shorter of perfection had they been written by popularly chosen assemblies of untutored and inexperienced deputies of the people at large. “The voice of the people has been said to be the voice of God,” said Alexander Hamilton in the Philadelphia Convention, “and however generally this maxim has been quoted and believed, it is not true to fact. The people are turbulent and changing, they seldom judge or determine right.” It may therefore be doubted, he added when addressing the New York Ratifying Convention in 1788, whether they “possess the discernment and stability necessary for systematic government.”
Certainly the antidemocratic sentiments expressed by many of the Founding Fathers strike the modern student of government as unenlightened. Perhaps they were. It must be remembered, however, that they were sailing on uncharted seas. They were not familiar with universal suffrage and mass democracy. Nor were many of their countrymen prepared for the duties that accompany political liberty. Besides, there was an abundance of historical evidence indicating that democracies tend toward mediocrity and tyranny of the majority. Cautiously but deliberately they nevertheless inched their way toward a more broadly based democracy, and with each passing decade their faith in the people grew stronger. There were many factors which propelled the nation in this direction, but none more important, as we shall see, than the establishment of a democratic republic under the Constitution of 1787.