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A Constitutional History of the United States
Chapter XI - Early State Constitutions
by McLaughlin, Andrew C.

The Declaration of Independence involved the necessity of establishing state governments. Separation from the mother country meant that the colonies were no longer colonies in the British empire, but independent states. The early stages of the process of transition were distinctly a part of the conflict with Britain. The Revolutionary movement, while it was still only a rebellion and before there was any definite intention to break with Britain altogether, necessarily produced some form of extra-legal government; royal and proprietary governors were ignored or steps were taken to overcome or circumvent their power. Provincial congresses or conventions or committees chosen in the various communities contrived, as best they might, to get their way. The growth of the power of these conferences, especially of the committees having in charge the whole management of resistance, was as a rule gradual; but it began before the fourth of July, 1776.

The Continental Congress was naturally interested in the establishment of substantial governments in the rebellious colonies. Some of the members were at an early day quite aware of what such an establishment would imply, and if they were eager for independence, they were keenly desirous of seeing the colonies enter upon the job of fashioning governments capable not only of resistance but of doing the work of self-dependent commonwealths.

The first important step was taken by the provincial congress of Massachusetts. That colony sent a formal letter (dated May 16, 1775) to the Continental Congress asking for explicit advice "respecting the taking up and exercising the powers of civil government," and promising to submit to such "a general plan" as Congress might direct for the colonies.[1] Early in June Congress answered the inquiry: inasmuch as no obedience was due to the act of Parliament for altering the charter, and no obedience to a governor or lieutenant-governor endeavoring to subvert the charter, those officers should be considered as absent and their offices vacant; it was resolved that "in order to conform, as near as may be, to the spirit and substance of the charter, it be recommended to the provincial Convention, to write letters to the inhabitants of the several places, which are intituled to representation in Assembly, requesting them to chuse such representatives, and that the Assembly, when chosen, do elect counsellors; which assembly and council should exercise the powers of Government, until a Governor, of his Majesty's appointment, will consent to govern the colony according to its charter."

In the latter part of the same year New Hampshire sent a somewhat similar request, which was answered in substantially the same manner.[2] Soon afterwards, like recommendations were made to South Carolina [3] and Virginia.[4] In these three cases, however, the advice of Congress, more clearly than in the reply to Massachusetts, brought out the idea of an independent representative body capable of setting up a government; it more nearly approached the conception of a representative constitutional convention. Indeed, that idea in its fundamentals is plain.[5]

The next spring (May, 1776) a resolution with a very expressive and conclusive preamble was passed in Congress. It declared it necessary that the exercise of every kind of authority under the Crown should be totally suppressed, that all of the powers of government should be exerted under the authority of the people, and that it be recommended to the assemblies and conventions of the united colonies, where no government sufficient to the exigencies of their affairs had been established, to adopt such government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents and of America in general.[6] Thus nearly a year had passed between the advice to Massachusetts and the general recommendation to the colonies. The hesitant might still persuade themselves that the governments established were to be but temporary, lasting only until the unfortunate dispute with the mother country should be settled, but this general advice meant that the colonies were henceforth to be free and independent states.

In the transmutation of colonies into commonwealths the principles on which these new states were to be founded were a matter of transcendent importance. And, as principles have reality and stability only when made actual, the method and the machinery whereby the states were established and organized are of signal significance. Many times in the past, writers on government had asserted that the people were the original possessors of power and the source of governmental authority. Such declarations had been announced as the corner stone of the American argument against Britain. Now that the Americans had the opportunity to set up governments, how nearly would their conduct accord with this doctrine? An intelligent people, a reading people, a people well-schooled by orators, pamphleteers, lawyers, and preachers, and instructed by the political discussions of a decade, had the chance to rear governments and to fix the limits of their power by legal and authoritative commandments. Adams tells us that he declared that the people "must be all consulted, and we must realize the theories of the wisest writers, and invite the people to erect the whole building with their own hands, upon the broadest foundation." [7] The principles of political philosophy were to be put to the test.

What then was necessary if the theories of "the wisest writers" were to be actualized with an exactness they themselves could not have conceived? It was necessary (1) to bring into political action the main body of the people; (2) to produce an organ representing the people, the duty of which would be to describe the government and to define, if need be, the limits of its power; (3) to give the people, the original of power, the opportunity of passing definitely upon the proposed constitution and of bestowing upon the government the legal right to govern; (4) so to proceed that the body drawing up the constitution should be sharply distinguished from the legislature — the legislature acting as a temporary revolutionary government and the legislature to be reŽstablished under the new system; this was necessary because there must be no obscuring the derivative power of government as distinguished from the inherent power of the people. The body that drafted the constitution must not, therefore, legislate in the ordinary sense of the word. If the convention should not only draft a constitution but also act as a legislative body, then legislation and the constitution might appear to be on the same plane; the convention must not act as if it were a government; it must in all respects consider itself as a body representing the people for the specific purpose of preparing a government. If the constitution emanated from the convention and was not formally ratified by the people, the derivative character of the government might not stand forth so adequately and conclusively that even the blind could see. Only by the most careful observance of process in accord with elementary principles could it be made perfectly evident that to secure life, liberty, and the pursuit of happiness governments are instituted among men and derive their just powers from the consent of the governed.[8]

The constitutional convention is a familiar American institution, so familiar, in fact, that we find difficulty in realizing its fundamental character. Use of the process of representation for gathering a body of people with authority to draft a constitution appears so simple that we naturally think of the representative convention, the primary body subject only to the people themselves, as if the men of the Revolution created it without engaging in serious perplexity. But of course such was not the case; there was perplexity as well as failure in some cases to adopt methods plainly demonstrating the theory of popular government. But the statesmen of the day had the advantages of experience with representation as a working system and did not need to rely on theory alone. Even the provincial congresses and gatherings which had assumed control in the various colonies, though generally very irregularly constituted and irregularly chosen, were at the worst ostensibly representative; and thus the idea of a body based on systematic representation rather naturally adapted itself, under the wise guidance of Congress, to the existing practices.

In Massachusetts, after much discussion, the method which was followed showed so perfectly the theory of popular power and the nature of a constitution, that the work of that state merits our special attention although the constitution was the last of the strictly Revolutionary constitutions.[9] In May, 1777, the body which, formed on the analogy of the old charter, was the revolutionary but also the actual government of the state, recommended that the towns at the coming election empower their representatives to take part as members of a constituent convention for making a constitution which should be submitted to the towns for adoption and be instituted by the General Court, if approved by two-thirds of the freemen of the state over twenty-one years of age.[10] Upon the authorization of the towns thus secured, the assembly resolved itself into a convention, drew up a constitution and submitted it to the people (March 4, 1778). It was not accepted. There were several objections to it; especially noteworthy was the objection based on the absence of a bill of rights.[11]

If one wishes to see the literalness with which the men of those days took the theories of the origin of government in compact and the original possession of power by the people, he should read the Essex Result, the product of a convention of Essex County but largely the work of Theophilus Parsons.[12] "Over the class of unalienable rights", the Result declared, "the supreme power hath no controul, and they ought to be clearly defined and ascertained in a BILL OF RIGHTS, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered." [13]

After the defeat of the constitution in 1778, steps were taken to prepare another and to follow methods in all respects theoretically correct. The temporary government asked the voters to vote on two questions: did they desire a new constitution, and if so, would they empower their representatives to summon a convention for the sole purpose of framing one? As two-thirds of the towns were favorable, the towns were then called upon to select delegates who should form a constitution to be established by the vote of two-thirds of the free male inhabitants twenty-one years old, acting in town-meetings called for that purpose.[14] The convention thus provided for met (September, 1779), framed a bill of rights and a constitution, submitted its handiwork to the people, then adjourned and awaited the popular verdict. In due time the convention once again assembled, canvassed the votes, decided that the constitution was adopted, and arranged for the inauguration of the new government.[15] The process was perfect; no one could doubt that the people were the source of governmental authority, that their will was superior to the government which was their creature, or that the government and the state were not the same.

This constitution of 1780 was carefully worked out with patient thought and under able, scholarly guidance. It conclusively ended the struggle, centuries old, of enmity between government and the people; the old enemy, government, was made the servant of the politically-organized people.[16] The question for the future was whether the people possessing power would wisely use it and develop laws and political processes suitable to new needs.

The methods of Massachusetts have been here presented in some detail because of the precision with which the work was done. We must content ourselves with a summary of the action of other states. The Virginia constitution, which was drawn up before the adoption of the Declaration of Independence, was framed by a convention acting as the temporary revolutionary government but not expressly authorized to undertake the task of constitution-making. This was true also of South Carolina (1776) and New Jersey. The congresses or conventions of all the other states were expressly authorized to act, but these bodies were not chosen for the single purpose of framing constitutions. When constitutions were put into operation without being submitted to the people, there was a good deal of objection in a number of the states to the establishment of a constitution without direct popular sanction.[17]

A word on the subject of submission of the constitution to the people is appropriate here, though we must look into the decades after the Revolution for the development of the practice. Only gradually was the principle of submission taken up by the various states; the first state outside of New England to take this step was New York, in 1821. By the time of the Civil War, the practice seemed to be fairly well established. In a later period, however, various constitutions were drawn up and established without popular ratification. For example, the Mississippi constitution of 1890, the first of a series of constitutions drawn up by southern conventions, the purpose of which was to get rid of certain inconveniences of the constitutions forced upon the states during Reconstruction,[18] was not submitted.

The Revolutionary constitutions were framed in time of war, and the strange fact is, not that they failed in some particulars to carry out the perfect theoretical procedure, but that they so nearly approached it. Although in a number of the states there was a confusion of legislation and constitution-making, a confusion that necessarily obscured in some degree the fundamental distinction between ordinary legislation and the constitution as the supreme will of the state, the necessity of popular authorization seems to have been pretty fully recognized and the nature of a constitution, if not the full qualities of a convention, was in a general way clearly presented.

Although in the whole process of constitution-making there was a fairly complete recognition of the principles of popular government and of Revolutionary doctrines — more plainly so in some states than in others — there was not much in the way of sentimental theorizing unaffected by experience; and the institutions which were actually established were in large measure essentially those to which the people were accustomed. The constitutions provided for a governor and generally for a bicameral legislature. Pennsylvania and Georgia established unicameral legislatures, but soon fell into line with the practice of the other states.[19] The old colonial council was reŽstablished in some cases; in some of the states a board of censors was provided for. Suffrage was limited in various ways, so variously in fact that no generalization is possible; and there were also sundry qualifications for holding important offices — not only property qualifications but religious and theological as well.[20]

These early constitutions show a general distrust of the executive and, relatively, a confidence in the legislative — another direct product of colonial experiences. Some decades had to pass before executive authority was widened. Compared with modern constitutions, the early documents were brief. Their brevity can be easily accounted for: the people trusted in the ordinary rectitude and good sense of the legislature; they had not as yet learned the need of embodying in the constitution detailed directions and explicit restrictions; they had not gained that confidence in themselves which at a later day led them to place in their constitutions various provisions not of a fundamental character, but rather in the nature of statutory enactments. Life was comparatively simple and comparatively free from social and economic problems; the later development of constitutions mirrors the increasing complexity of the social and economic order.

Some of the early constitutions did not contain provisions for amendment, and the omission is not easily explained; certainly, if the right of revolution were to be legalized, there should be legal means for altering the form and the foundation of government. The failure to make such provision is probably attributable to haste and partly to the attention given by the framers to the fundamental character of their work; they did not realize how quickly and how often the need of change would arise.[21]

Including Vermont, which began to assume and assert statehood in the period under review, eight states adopted bills of rights (New Hampshire, Vermont, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, and North Carolina).[22] They accept the theory that government rests on consent and exists for the protection of rights. The Virginia bill of rights, largely the work of George Mason, contains the same philosophy as the Declaration of Independence and it was passed in the state before the Declaration was passed. It announces the doctrine of "inherent" rights of the people and the doctrine that all power is derived power. It then outlines in a masterly way the principles upon which free government rests. Associated with the announcement of the fundamental principle that power springs from the people and that the people have the right to alter and abolish government are certain other declarations of secondary rather than primary importance; they are of service in maintaining the more elementary and fundamental rights. The announcement of religious liberty in the Virginia bill is especially significant as an indication of the liberalizing effect of the Revolutionary movement. The first and most elementary principle of bills of rights is that men possessed rights before government was formed. Though it is now an elementary principle of constitutional law that the legislature of a state in the union has all power not forbidden either expressly or by implication, no man in appearing before a court of justice needs to set forth the essentials of individual liberty as a grant made to him by government; human rights are supposed to have existed before the establishment of government or state.

One well-known principle of the American constitutions is the separation of the powers of government. The legislative, executive, and judicial branches of government are distinct, and each branch is possessed of its peculiar and particular authority. We have carried that principle to an extent not known to the modern states of Europe; it is applicable to both our state and national governments; countless questions involving the interpretation and the application of the principle have come before the courts for decision. When the federal Constitution was framed, it seems to have been taken for granted as an elementary doctrine that separation of powers was one of the main safeguards of liberty. The idea was associated with the need of checks and balances which would keep each department within its proper sphere. Not all of the early state constitutions [23] plainly provided for separation, nor did the federal Constitution explicitly do so, but only by fairly conclusive implication.

The origin of this principle is not easily determined. Like many others, it is in some respects of hoary antiquity. The influence of Locke is probable.[24] In this matter, as in others, the Americans carried doctrine to the logical ultimate. The most influential writer was Montesquieu, whose Esprit des Lois was known in Revolutionary days. John Adams, a lover of checks and balances, seems to have been affected by James Harrington.[25] But American experience strengthened, if it did not create, the principle. Men do not commonly — if they are wise, and the early American statesmen cannot be denied the attribute of wisdom — enthusiastically adopt a disembodied idea from beyond the field of practical acquaintanceship. The colonists had not lived under a system in which separation of the powers was fully recognized; but they had been engaged in a series of debates and disputes concerning the extent of the authority of different branches of government. It is true that in some instances, perhaps commonly, they were really desirous of asserting the supremacy of the legislative branch, but the idea of separation and distinction was in some instances brought fairly clearly to light.[26]

Associated with the doctrine of separation of powers is the principle that granted power cannot be delegated. And this principle brought up in the course of time a good many constitutional problems. Important as the principle of separation is, constitutions do not provide for complete isolation of the departments of government. For example, the fact that a bill requires the signature of the executive, unless it is passed over his veto, gives him a participation in legislation; and executive influence over legislation has greatly increased in the passing decades.

If it be asked why people were so unwise — and the question is often asked — as to hamper government by division of authority and by checks and balances, the answer is simple: such was the kind of government the leaders and probably men in general wanted. Who are a free people? Those who live under a government so constitutionally checked as to make life, liberty, and property secure. That would have been the explicit answer of the Revolutionary days. In some ways the most marked development of the idea of popular government from that time to this has been the development of the belief that governments, strongly directed by popular opinion, should be competent and active — a change from the belief that governments should not do things to the belief that they should do things.

[1] The letter, in the form of a resolution, was presented to Congress June 2. An essential paragraph is as follows: "We are happy in having an opportunity of laying our distressed state before the representative body of the continent, and humbly hope you will favour us with your most explicit advice respecting the taking up and exercising the powers of civil government, wch we think absolutely necessary for the Salvation of our country and we shall readily submit to such a general plan as you may direct for the colonies, or make it our great study to establish such a form of government here, as shall not only most promote our advantage but the union and interest of all America." Journals, II, p. 77. This was a very wise and shrewd approach. It took for granted that the matter was of continental concern; it was becomingly submissive to the opinion of Congress, and it indicated the desirability of a general plan for "America". But the general plan had to wait, for not all the colonies were so far along the road to independence as was Massachusetts.

[2] Laid before Congress October 18, 1775. Answered November 3, 1775.

[3] November 4, 1775.

[4] December 4, 1775.

[5] "Resolved, That it be recommended to the provincial Convention of New Hampshire, to call a full and free representation of the people, and that the representatives, if they think it necessary, establish such a form of government, as, in their judgment, will best produce the happiness of the people, and most effectually secure peace and good order in the province, during the continuance of the present dispute between G[reat] Britain and the colonies."

[6] In the above sentences the resolution of May 10 and the preamble adopted on May 15 to accompany the resolution are abbreviated and woven together. We can see in these resolutions the basis of the conversation reported by John Adams: "Mr. Duane called it to me, a machine for the fabrication of independence. I said, smiling. I thought it was independence itself, but we must have it with more formality yet." John Adams, Works (C. F. Adams, ed.), III, p. 46.

[7] Ibid., III, p. 16.

[8] These ideas and the elements of the process flowed naturally and inevitably from the whole theory of the compact-origin of government as set forth by "the wisest writers" and announced over and over again during the preceding century by the New England preachers. How well Adams and others knew written pronouncements concerning a constitutional convention which were put forth in England in the middle of the seventeenth century, we do not know. They knew the theory, and some of them probably knew Sir Henry Vane's Healing Question. They may not have known an interesting document of that earlier century which very distinctly presented the fundamental character of a constitutional convention. I refer to a plan drawn up in 1648: "That some persons be chosen by the Army to represent the whole Body; and that the well-affected in every County (if it may be) chuse some persons to represent them: And those to meet at the Head-Quarters.

"That those persons ought not to exercise any Legislative power, but onely to draw up the foundations of a just Government, and to propound them to the well-affected people in every County to be agreed to: Which Agreement ought to be above Law; and therefore the bounds, limits, and extent of the peoples Legislative Deputies in Parliament, contained in the Agreement to be drawn up into a formall contract, to be mutually signed by the well-affected people and their said Deputies upon the dayes of their Election respectively...." Legal Fundamentall Liberties, p. 34. Quoted in Pease, op. cit., p. 261. Notice the character of the body to meet at headquarters and the popular ratification by signing. It appears that deputies elected to Parliament under this fundamental instrument were, when elected, to sign, a provision similar to our provision requiring officers elected as well as others to take oath to abide by the Constitution.

[9] In New Hampshire, where the general methods of operation were likely to resemble those of Massachusetts, a constitution was adopted in 1776 by a body not chosen for that special task and that alone. In 1778 a convention properly constituted drafted a constitution which was defeated by popular vote. Other conventions met and framed constitutions which met with a like fate. One was finally approved in 1783.

[10] H. A. Cushing, History of the Transition From Provincial to Commonwealth Government in Massachusetts (Columbia University Studies in History, etc., VII, no. 1), p. 207.

[11] There is probably no need of attempting to decide exactly when and where the idea of the character of the full-fledged constitutional convention came to light. We have already noticed the appearance of the idea in England over a hundred years before the American states acted. The origin of the institution, perfectly envisaged, has been attributed to Concord, Massachusetts, by R. S. Hoar ("When Concord Invented the Constitutional Convention," Boston Transcript, July 3, 1917). The resolutions of the town-meeting (October 21, 1776) are full of interest: they declare the legislative is no body proper to form a constitution — "first Because we conceive that Constitution in its proper Idea intends a system of principals established to secure the subject in the Possession of, and enjoyment of their Rights & Privileges against any encrouchment [sic] of the Governing Part. Secondly Because the same Body that forms a Constitution have of Consequence a power to alter it — thirdly Because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encrouchment [sic] of the Governing part on any or on all their Rights and Privileges." It is quite plain that such principles underlie the great body of American constitutionalism. Edward Rutledge suggested a special congress of new members to draw up articles of confederation (August 19?, 1776). Letters of Members of the Continental Congress (E. C. Burnett, ed.), II, p. 56. It would seem, however, that the reason was chiefly grounded on the fact that Congress was busy.

[12] Cushing, op. cit., pp. 221-226. Concord cast 111 votes against the constitution and none in its favor. Hoar, op. cit.

[13] Result of the Convention of Delegates Holden at Ipswich in the County of Essex, p. 15.

[14] Cushing, op. cit., pp. 227-229. It cannot be said that there is anything sacred in the proportion of two-thirds.

[15] As to the difficulty in determining the full meaning and effect of the returns from the towns, see S. E. Morison, "The Struggle Over the Adoption of the Constitution of Massachusetts, 1780", Mass. Hist. Society Proceedings, L, p. 396 ff. (October, 1916-June, 1917). He says, "'... the plain people of the state, in town meeting assembled, were able to point out the principal flaws that time and experience would find in the constitution drafted by John Adams, and adopted by a Convention that included among its members Samuel Adams, James Bowdoin, Theophilus Parsons, John Lowell, George Cabot, and Robert Treat Paine.' "

[16] This statement may appear an exaggeration in light of the fact that there were qualifications for voting, qualifications for holding office, religious provisions, and other matters in the constitution that needed to be altered in later years; the constitution of 1780 was not altogether in accord with twentieth-century democracy. But nevertheless, one does not mistake in seeing in this constitution and the method of its adoption the logical end of a long epoch; men had found a manner of creating a government and making it subject to their will; they had found a method not only of granting power but of preserving liberty. As far as political liberty was concerned, the government was in the people's hands.

[17] "Jefferson always denied the power of the convention to adopt a permanent frame and intended that his draft, if adopted, should be referred to the people." Lingley, op. cit., p. 174. "Resolutions in New York and North Carolina expressed strongly the demand for a popular voice in the approval of constitutions, but here too it is probably the case that the popular participation was less than might have been desired because of the critical condition of affairs and of the necessity for prompt action. Even under these conditions action was taken in a number of states which amounted to an informal submission of constitutions to the people (Maryland, Pennsylvania, North Carolina, South Carolina, 1778), but the proposed Massachusetts constitution of 1778 is the first instrument of government which was formally submitted to a vote of the people." W. F. Dodd, "Constitutional Convention," Cyclopedia of American Government, I, p. 425.

[18] South Carolina, 1895; Louisiana, 1898; Virginia, 1902. The Delaware constitution of 1897 was not submitted, and the Kentucky constitution of 1891 was altered by the convention after it had been ratified. See W. F. Dodd, The Revision and Amendment of State Constitutions, pp. 67-68. The author, after a careful examination of precedents, points out that the "more usual procedure" (not universal practice) includes three popular votes: (1) the vote of the people authorizing a convention; (2) the election by the people of delegates; (3) the submission of the constitution for adoption or rejection. Ibid., p. 71. It should be noticed, however, that he brings out the fact that constitutions are "elaborated by constitutional conventions chosen for this express purpose, and distinct both in organization and election from the ordinary legislative bodies." Ibid., pp. 70-71. Amendments not formulated by conventions are frequently made by popular vote.

[19] Pennsylvania in 1790. Georgia in 1789.

[20] Something is said about this in a later chapter of this work.

[21] "The absence of provision for alteration in the constitutions of 1776-77, should not be taken as an indication that their framers thought the regular legislatures competent to alter or establish constitutions, but rather that they did not consider the matter at all." Dodd, The Revision and Amendment of State Constitutions, p. 27.

[22] For the Delaware bill of rights, see Am. Hist. Rev., III, p. 641 ff. For illustrations of the prevalence of compact thinking, see the preamble of the Massachusetts Constitution, 1780, the preamble of the New Jersey constitution, 1776, and the Maryland declaration of rights, 1776.

[23] "Of the twelve commonwealths which, prior to 1787, had adopted constitutions, six had inserted ... a general distributing clause...." William Bondy, The Separation of Governmental Powers (Columbia University Studies in History, etc., V, no. 2), p. 19. Most states now have distributing clauses, and in all the general principle is recognized.

[24] Locke spoke of three powers — legislative, executive, and federative — but did not emphasize the necessity of separation on the lines known to our constitutions.

[25] See H. F. Russell Smith, Harrington and His Oceana a Study of a 17th Century Utopia and Its Influence in America, especially pp. 63-66, 192-194.

[26] "Indeed, the doctrine of the separation and balance of powers was proclaimed in Massachusetts before the Esprit des Lois saw the light. In 1742 the house of representatives in Massachusetts rejected the demands of Governor Shirley for a permanent salary on the ground that it 'would greatly tend to lessen the just weight of the other two branches of the government, which ought ever to be maintained and preserved; especially since the governor has so great authority and check upon them.'" W. S. Carpenter, "The Separation of Powers in the Eighteenth Century," Am. Pol. Sci. Rev., XXII, p. 37.


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