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A Constitutional History of the United States|
Chapter XXVIII - The Development of State Constitutions
by McLaughlin, Andrew C.
|If we should confine ourselves to a consideration of the events and
constitutional controversies in the national field, we would not get a very
satisfactory or correct appreciation of the developments of popular government
in the first half century after independence. Such a story would omit the
evidences of the most essential thing in the life of a state moving continually
forward toward popular control. More important than legal institutions are the
capacity of the people and their readiness to assume the responsibilities of
self-government. The development of this readiness, the growth of essential
democracy, is not easily traced; but its results are obvious: the common man
became more self-reliant. In the first fifty years, the social leaders of the
older type lost their position of leadership. A study of the history of those
years will free the mind of the reader from the idea that the American man
started in 1776 wholly free and has gradually been wound about by chains of
All through our history the state constitutions furnish an excellent
index of the prevailing political thinking. Alterations in the constitutions
mark developments or tendencies in political life. More clearly, on the whole,
than any other class of documents, they show results of economic and social
movement. From even a cursory examination, we find plain proof that great and
essential changes took place in the first half century. The changes in the
constitutions were not merely technical or formal; in many cases they marked a
decided movement in the direction of a wider and stronger democracy. Most
significant of all was the widening of the suffrage, and, it must be
remembered, the national Constitution left the right to determine the
qualifications for suffrage to the states; if the number of those qualified to
vote for members of the "most numerous branch" of the state legislature was
increased, the number allowed to vote for congressmen was likewise increased;
and if presidential electors were chosen by popular vote, any enlargement of
the popular electorate added to the number qualified to vote for presidential
It is difficult to outline in general terms, and still with accuracy,
the limits placed on the suffrage by the early constitutions, for the
qualifications varied from state to state. Only one state, Vermont (1777),
permitted manhood suffrage; every other state laid down restrictions. In South
Carolina (1778) a voter must acknowledge the "being of a God," believe in a
future state of rewards and punishments, and, equipped with these beliefs, must
have a freehold estate of fifty acres or pay a tax equal to the tax on fifty
acres of land. In New Jersey (1776) a voter must be worth fifty pounds of
proclamation money, while in Virginia (1776), as in some of the other states,
at least a small freehold was necessary. In Massachusetts (1780) a voter must
have a freehold estate "of the annual income of three pounds" or other property
of sixty pounds value. To vote for representatives in New York (1777) one must
have a twenty-pound freehold or a small leasehold estate; but to vote for
governor or senators one must have a freehold of one hundred pounds value.
Pennsylvania (1776) and New Hampshire (1784) were less exacting, the former
giving the suffrage to taxpayers and to sons of freeholders, the latter to
The tendency to lighten or remove suffrage restrictions appeared even
before the new century began. South Carolina (1790) retained a property
qualification, but gave up the religious requirements; twenty years later the
property test was abandoned. New Hampshire (1792) took steps in
the same direction. In the same year Delaware substituted the payment of a tax
for the property test appearing in her earlier constitution, and allowed sons
of taxpayers to vote. In the next century Maryland (1810) adopted manhood
suffrage. As might be expected, the western states entered the union with
liberal provisions, manhood suffrage being provided for by Kentucky (1792),
Indiana (1816), Illinois (1818), Alabama (1819), and Missouri (1820). Maine,
separating from Massachusetts, adopted manhood suffrage in 1819; Mississippi
(1817) and Louisiana (1812) were almost as liberal.
Massachusetts and New York held constitutional conventions, the former
in 1820, and the latter in 1821, in which property qualifications for suffrage
were ably debated. The conservatives there took their stand, almost the last
stand at the north, against the tide of democracy which was sweeping the
country. The New York debates deserve more than passing notice because they
illustrate so well the fear of popular suffrage, the belief in the sobering
influence of property, and also something of the old belief that property
itself should claim representation. A proposal earnestly debated was one
restricting the right to vote for state senators to those who, in their own or
their wives' rights, had a freehold estate of a certain value. "Life and
liberty", said one speaker, "are common to all, but the possession of property
is not. Hence the owners of property have rights which, in relation to those
who are destitute, are separate and exclusive." "... a fair representation of
every class of citizens in the administration of government, requires that the
right of suffrage should be so arranged, as to give due weight to property, as
well as to personal rights."  Such arguments were by that time
rather old-fashioned. Their disappearance is significant; they had little
breathing-space after 1825.
James Kent, the learned Chancellor, depicted with great earnestness the
dangers of universal suffrage. Those pursuing that "ignis fatuus", he
declared, ought to be awakened and startled by the growth of New York City. He
pictured the condition of France and England with millions of unpropertied
people. "The radicals in England," he said, "with the force of that mighty
engine, would at once sweep away the property, the laws, and the liberties of
that island like a deluge." Martin Van Buren was more hopeful; he asked the
convention to move on in accord with other states and to forget the forebodings
which the framers of the Constitution had entertained nearly forty years
before. "Experience," he asserted, "the only unerring touchstone, had proved
the fallacy of all those speculations...."  But even Van Buren
halted when it came to the question of granting complete and universal
suffrage; he, too, had his fear of the rabble; free voting in New York City, he
asserted, would drive from the polls all sober-minded people. Finally the
convention granted the suffrage to taxpayers, though even from this requirement
certain persons were exempted, and gave to men of color the privilege of voting
if they possessed a two hundred and fifty-dollar freehold and paid a tax on it.
Five years later the state, by an amendment, swept all restrictions away from
the path of the white voter.
In Massachusetts there was a similar discussion; the defenders of
property succeeded in limiting the suffrage to taxpayers, but the
qualifications of the first constitution were abandoned. The action of two
populous and influential states like New York and Massachusetts was of course
significant of what had been going on in the land, and no less significant was
the act of Connecticut summoning a convention and supplanting her old charter
with a modern constitution (1818).
The early constitutions commonly laid down qualifications for
office-holding which were thought to insure the hold of the prosperous and the
virtuous upon the powers of office. By the constitution of Massachusetts (1780)
no one could be a senator unless he possessed a freehold of three hundred
pounds value or. a personal estate of six hundred pounds, or both to the amount
of the latter sum; no one could be a representative unless he had a freehold of
one hundred pounds or a ratable estate of twice that amount; and a governor
must be blessed with a thousand-pound freehold. Such officers must take an oath
that they believed in the Christian religion. It followed, therefore, that any
voter properly qualified might vote for a Christian sufficiently rich to be a
safe guardian of the state. In Delaware (1776) the office-holders must be
trinitarians and believe in the divine inspiration of the Scriptures; members
of the legislature must be not only orthodox but freeholders. In Pennsylvania
(1776) a representative must declare his belief in one God, the creator and
governor of the universe, the rewarder of the good and the punisher of the
wicked, and must acknowledge the divine inspiration of the Scriptures. In South
Carolina (1778) only Protestants, possessed of considerable property, could be
members of the legislature; the governor and certain other officials must each
have in his own right a settled plantation or a freehold worth at least ten
thousand pounds currency. New York (1777) and Virginia (1776) managed to get on
without religious tests for office-holding and provided only a freehold
qualification for holding some positions; but some kind of religious and
property qualifications was common to most of the other states.
That such requirements for office-holding should be laid down in the
constitutions of Revolutionary days need not surprise us, though the
constitutions, on the whole, mark a very decided step forward in popular
government. The movement toward liberalism began before the end of the century
and thereafter went slowly forward. Massachusetts abandoned the religious
restriction in the early nineteenth century; the Connecticut constitution of
1818 made a declaration of complete religious equality. In the west, there was
from the beginning freedom from religious tests except in three states where
atheists were excluded from certain offices. Property
qualifications for office-holding also gradually gave way, but only slowly.
Even the new states in some cases laid down such requirements.
But gradual though the movement was, it was continuous, and marked (as did the
abandonment of the suffrage restrictions) growing liberality, less faith in
orthodox religious belief and in the sacred superiority of property, and more
faith of men in themselves and in their fellows. There was also some advance in
the direction of popular apportionment of representation, and this was of great
significance, for it marked, as did other changes, growing recognition of the
fact that people were the basis of government and that privileged areas must
In the south, where the western non-slaveholding regions of a state were
likely to be underrepresented, this movement for reapportionment was of extreme
importance. In the Virginia convention of 1829-1830, which contained a number
of conspicuous and able men — John Marshall, James Madison, and William B.
Giles among them — , a great debate was staged. The outcome,
something of a compromise, was unsatisfactory to the free farmers of the
western region, and left a sense of injustice in their minds; but disruption of
the Old Dominion was not consummated until over thirty years later, when the
nation was shaken by civil war.
In the early days, it was common to trust the legislature; except as its
powers were limited or checked by a few direct commands and by the general
principles of the constitution, it possessed full legislative authority. The
governor, on the other hand, was not trusted; and this distrust was probably
due to the fact that the name and the office recalled to the popular mind the
colonial official with whom there had been controversy and dispute. In the
Revolutionary constitutions, except in four states, he was chosen
by the legislature. This method of choice is an evidence of lack of faith in
the capacity of the people to choose men qualified for high office, and a
belief in the greater wisdom of the legislature. In some states he was guided
or advised by a council, another relic of the past; he had as a rule no veto
and little or no power of appointment. But in these respects, as
in others, changes came: the council began to disappear; the veto was granted;
popular election was substituted for election by the legislature. The
development of the governor's independence and his immediate dependence upon
the people show that the people were no longer in fear of the executive; they
were confident of their own authority and their own strength; timidity was not
becoming in a people who had now come to the stage of growth when they looked
upon an officer not as a superior but as a servant. This changed attitude of
mind, so clearly exposed by the development of state constitutions, underlies
and explains the qualities of the Jacksonian era and can be seen in the field
of national as well as state politics. In fact, without appreciation of it,
Jackson and Jacksonism are incomprehensible.
Beyond the governor and the executive council, little was said in the
early constitutions about executive officers. When they were provided for at
all, they were commonly chosen in some manner by the state government, not by
the people. The drift away from appointment toward popular election was slow;
not until the nineteenth century was well advanced was there a marked demand,
in accord with the spirit of Jacksonian democracy, for the possession of full
elective power by the people. That change, when it was finally adopted, was of
immense significance and influence on the character of state governments. But
the lengthening of the ballot and the consequent burdens which were thus placed
on the uncomplaining shoulders of the average voter probably did not make
government really more democratic, more just, or more efficient.
 The amendment (1810) is a bit confusing, but the above
seems to be a reasonable interpretation.
 In speaking of manhood suffrage, I have not attempted to
point out how far the states admitted negroes to the suffrage, on the whole not
an extremely important question until later years. The tendency appears to have
been in the direction of the exclusion of colored men, if any modification was
made in suffrage requirements. In some cases, soldiers and sailors were
 Reports of the Proceedings and Debates of the
Convention of 1821, p. 226.
 Ibid., p. 261.
 Reference was made in the third article of the adopted
amendments to certain citizens "who shall be by law exempted from taxation...."
Journal of Debates and Proceedings, p. 618.
 In Arkansas (1836) no person who denied the being of a
God, in Tennessee (1796) and in Mississippi (1817) no person who denied the
being of a God or a future state of punishments and rewards could hold any
office in the civil department of the state, though the Arkansas and Tennessee
bills of rights declared against religious tests.
 Ohio (1802), Indiana (1816), and Illinois (1818) required
legislators to be taxpayers, not a burdensome requirement, on the whole.
 Something of the attitude of the conservatives may be
gathered from the remarks of one delegate: "... if any plague originate in the
North, it is sure to spread to the South and to invade us sooner or later: the
influenza — the small-pox — the varioloid — the Hessian fly
— the Circuit Court system — Universal Suffrage — all come from
the North — and they always cross above the falls of the great rivers".
Only, it appears, the old tidewater region was in itself immune from infection.
Proceedings and Debates of the Virginia State Convention, of 1829-30, p.
 New Hampshire, Vermont, Massachusetts, and New York.
 In Massachusetts he had a veto that might be overcome by
a two-thirds vote of the legislature. There too, he had considerable powers of
appointment. The South Carolina constitution of 1776 provided that the governor
could assent to or reject bills. In New York a council of revision, of which
the governor was a member, had a qualified veto.