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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 privilege.

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 electors.

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 taxpayers.

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.[1] 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.[2]

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." [3] 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...." [4] 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,[5] 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.[6] Property qualifications for office-holding also gradually gave way, but only slowly. Even the new states in some cases laid down such requirements.[7] 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 give way.

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.[8] 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,[9] 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.[10] 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.

[1] The amendment (1810) is a bit confusing, but the above seems to be a reasonable interpretation.

[2] 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 disqualified.

[3] Reports of the Proceedings and Debates of the Convention of 1821, p. 226.

[4] Ibid., p. 261.

[5] 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.

[6] 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.

[7] Ohio (1802), Indiana (1816), and Illinois (1818) required legislators to be taxpayers, not a burdensome requirement, on the whole.

[8] 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. 407.

[9] New Hampshire, Vermont, Massachusetts, and New York.

[10] 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.


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