State Constitution Making
State Constitution Making
As Americans confronted the evaporation of British authority in 1775 and gradually came to embrace the idea of independence from Britain, they immediately recognized the need to establish new forms of government. Except for the colonies of Rhode Island and Connecticut, where political leaders remained satisfied with the existing—nearly republican—forms of government, Americans generally expected their political leaders to write constitutions that would both establish governments and restrain both governors and legislatures. A constitution identified the principles upon which the government was based and instituted forms of government that would make those principles reality.
who can write constitutions?
The framers understood that if members of the government were allowed to establish and alter their own government, then they would wield unlimited power. Therefore, the founders uniformly rejected the idea that a legislature could write a legitimate constitution and, instead, required another institution for that work. Initially, most of the new states relied upon provincial congresses—temporary Revolutionary bodies that provided a governmental bridge between colony and state—to draft the state constitutions. Soon, though, they turned to a constitutional convention, whose delegates were elected by the people and whose sole responsibility was to write or revise constitutions.
The experiences of three colonies—Pennsylvania, Delaware, and Massachusetts—revealed the widely shared belief that a legislature could not write a constitution. In those colonies, legislatures persisted, operating as they had before 1775 despite the absence of a governor. None of the three legislatures allowed themselves to write constitutions. All three insisted that a separate, impermanent body of men write the constitution; all three assigned the task to constitutional conventions. Impermanence was important to the founders because they did not want those framing the government to have an institutional interest in the results of their own deliberations. If a legislature were to write a constitution, then it could vest itself with unlimited power. Constitution writing was, self-consciously, about the creation of fundamental law that defined and restrained government; therefore, the body that wrote the constitution could not be part of the future government. Provincial congresses, which temporarily assumed all of the powers of government, were acceptable proxies; formal legislatures were not.
declarations of rights
The provincial congresses or constitutional conventions wrote constitutions that wove together declarations of rights with formal plans of government. Of the twelve states writing constitutions (including Vermont), seven began the document with a declaration or bill of rights. Those states that did not adopt separate declarations identified inviolable rights in the body of the constitutions. In both cases, the declarations of rights explained why a constitution was being written and adopted, the principles that underlay the foundation of the new government, the rights of the individual and the society, the extent to which those rights could be breached by government or any of its branches. The declarations expressed common aspirations, though they diverged on specific rights. They all affirmed that the people established and controlled government. Moreover, they agreed that sovereignty belonged to the people; they did not share it with their magistrates or legislatures. Then the framers identified rights that could not be breached by magistrates and others that could not be violated by either magistrates or legislatures. The Maryland Declaration of Rights asserted: "All Government of right originates from the People, is founded in compact only, and instituted solely for the good of the whole." Therefore, the people possessed "the sole and exclusive right of regulating the internal government." Public officials—magistrates and legislators—were "the Trustees of the Public, and as such accountable for their conduct."
The declarations sought to ensure that those trustees remained true to the people by requiring frequent elections and the separation and limitation of powers in government. The Pennsylvania declaration required frequent and regular elections to ensure that "those who are employed in the legislative and executive business of the State may be restrained from oppression." Maryland's declaration demanded "that the Legislative, Executive, and Judicial powers of Government ought to be forever separate and distinct from each other." If frequent elections and separation of powers did not halt the onset of tyranny and if, as a consequence, men in power "perverted the ends of government," then "a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, and abolish" the government.
The declarations then turned to specific rights and grants of power. Following English constitutional tradition, they lodged the power of taxation and the expropriation of individual property in the legislature and outlined the limits of the legislature's tax power. They also allowed the legislature to revoke an individual's right to freedom from arbitrary arrest. Yet they protected numerous procedural rights of individuals in the criminal justice system.
The most important of the rights addressed by the declarations was freedom of religion. The North Carolina declaration asserted, "All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences." Most declarations disestablished particular sects in their states. New Jersey forbade "establishment of any one religious sect in the Province, in preference to another." And the states, in turn, prohibited clergymen from serving in the legislature in the hope of limiting the sway of churches in government. Nevertheless, the declarations' impact on freedom of religion was much more ambiguous. In effect, they created broader Protestant or Christian establishments by protecting the civil rights of only Protestants or, more generally, Christians (Pennsylvania extended them to all believers in God); by requiring particular religious qualifications for officeholding (Protestants in some states, Christians in many more); and by authorizing legislatures to make general assessments to support the state's Protestant churches.
amending the constitutions
The framers reinforced their commitment to constitutionalism by establishing procedures for constitutional amendment. Only two of the twelve states apparently permitted legislative emendation of their constitutions. New Jersey prohibited the legislature from altering important parts of the constitution—such as the clauses regarding freedom of religion, annual elections, and trial by jury; subsequent legislatures assumed that the rest of the constitution was fair game for revision by simple statute. And South Carolina's legislature, over the protests of a sitting and prospective governor, asserted its right to frame and amend constitutions. Three states—Virginia, North Carolina, and New York—provided no mechanisms at all for revision. The constitutions of Pennsylvania, Georgia, Vermont, Massachusetts, and New Hampshire (in 1784) forbade emendation by the state legislatures. Georgia required citizen petitions for a new convention. Pennsylvania and Vermont established the septennial creation of a Council of Censors to investigate possible violations of the constitution, to determine whether the constitution needed to be preserved or improved by amendment. The council then could call a constitutional convention to amend the document. Massachusetts required a referendum in fifteen years; if two-thirds of the voters so desired, a constitutional convention would be held. New Hampshire's framers did not leave a constitutional convention to chance. They required a new one in seven years. Other states, including Delaware, forbade amendment of the declaration of rights and the provisions for a bicameral legislature and annual elections but allowed amendment of all the other provisions by extraordinary majorities in each of the legislature's two houses. Maryland permitted legislative amendment, but only by two successive legislatures.
The constitution makers' understanding of constitutionalism shaped their developing theory of representation. They believed that all inhabitants were entitled to some representation in the legislature and therefore sought to ensure that all of the communities in a state were represented. In states where population growth (or decline) shaped representation, constitution makers abandoned borough representation, which provided special representation for the special commercial interests of towns. In most cases framers combined corporate representation (i.e., representation of towns, counties, and parishes) with representation based on population. Only three states—Maryland, Virginia, and North Carolina—relied exclusively on traditional county representation and equally traditional borough representation. Georgia, while retaining county representation, allowed new counties to gain increased representation (at a rate of one representative for every ten electors) until a county reached the maximum of ten representatives. Then equal county representation held. Elsewhere, the new constitutions accommodated changes in population. And, most important of all, every constitution, except for Massachusetts's, provided representation for all established communities.
The insistence on representation for established communities led many of the constitutional framers to demand what one person called "particular representation" because they believed that the representative had a responsibility to express the views of his particular constituents. All groups in society needed to be represented. Evidence of the direct relationship assumed to exist between representative and constituent may be found in the doctrine of instruction. In England, constituents traditionally instructed their representatives on matters of local interest, like the construction of a road. Matters of empire were left in the hands of the wiser and worldlier members of Parliament. The American Revolutionaries embraced the idea of instruction but turned the doctrine on its head. They regularly assured their representatives that small matters, like road building, might be entrusted to them, but they believed that matters of moment, like the decision for independence, must be determined by the people themselves. Maryland's Revolutionary leader, Samuel Chase, organized county meetings to instruct reluctant members of the provincial convention to support independence. After the convention endorsed independence on 28 June 1776, a jubilant Chase credited "the glorious Effects of County Instructions."
elections and suffrage
If instruction allowed electors to tell their representatives how to vote, annual elections ensured obedience to their collective will. Annual elections also enabled electors to curb representatives who aimed for ever-greater power. Southern Revolutionary Samuel Johnston acknowledged that, because only the people could restrain "the Representatives of the People in a Democracy," he "would have Annual elections." John Adams put it more bluntly: "Where annual elections end, there slavery begins." Annual elections, he wrote, taught "the great political virtues of humility, patience, and moderation, without which every man in power becomes a ravenous beast of prey." The founders' insistence on annual elections, together with instructions and equal representation, expressed the Revolutionaries' belief that all freemen required direct representation to protect themselves from potentially untrustworthy representatives.
The American obsession with representation and consent by direct election led constitution makers to consider the importance of voting and the right of suffrage. Although the significance of voting dictated to some that the suffrage be restricted (Virginia and Delaware retained provincial freehold requirements), most sought to broaden the political foundations of the new governments. Some states—including New York, Georgia, New Jersey, and Maryland—lowered property requirements and allowed calculation of a person's entire estate (personal and real) to meet property requirements instead of limiting suffrage to those meeting the more restrictive real estate requirements. In so doing, those states undermined the traditional view that only a landed estate secured the permanent stake in the well-being of the community that was an essential to cast a public-spirited vote.
Other states detached voting rights entirely from the ownership of any specific amount of property. Vermont simply enfranchised all freemen. In Pennsylvania, New Hampshire, and North Carolina, constitution writers endorsed the Revolutionary demand for consent to taxation through direct representation by establishing a taxpaying requirement for voting. Because all three states also imposed a regressive and widespread poll tax on many of its male inhabitants, the taxpayer suffrage dramatically increased the size of the electorate. Furthermore, it detached the suffrage from the ownership of specific amounts of property. It also upended the traditional view of voting as earned by proof of one's ability (through property ownership) to act in the public's interest; the taxpayer suffrage effectively declared that taxpayers needed the right to vote to protect their property from the rapacity of legislators. The idea that one voted in order to protect the community and oneself from the possibility of government tyranny opened the suffrage to Catholics and Jews, who had been disfranchised in many of the colonies. (Nevertheless, constitution makers sought to exclude those groups from officeholding on the grounds that Catholic and Jewish officeholders might undermine America's Protestant culture.)
The act of revolution itself encouraged a radical expansion of the political community. Loyalty to the cause rather than property ownership proved one's attachment to the community. In Maryland, militiamen in six counties seized the polls and enfranchised all men serving in the militia. Although the Maryland convention disallowed the votes in those counties and required a new election, and although no state enfranchised men because of their military service, the states made loyalty a precondition for voting by disfranchising neutrals and loyalists. The Revolutionary argument also spurred the enfranchisement of single, property-owning women in New Jersey and the retention of the right of free black men to vote in Massachusetts. One Massachusetts writer, defending the right of blacks and Native Americans to vote, captured the impact of the Revolutionary argument on the political community: "A black, tawny or reddish skin is not so unfavourable an hue to the genuine son of liberty as a tory complexion."
separation of powers
As constitution makers considered the structure of the future state governments, they worried about the consolidation of power in the hands of the few. To avoid this, they fashioned constitutions that separated the functional powers of government among its several branches. They began by eliminating the gubernatorial veto. Royal governors had wielded an absolute veto in the name of the crown; such a veto effectively made the governor a third house in the legislature. By eliminating the veto and making the governorship a purely executive office, they enfeebled governors everywhere and marked a sharp line between executive and legislative powers. Two states—New Jersey and New Hampshire—breached that divide by granting the executives a vote in the upper houses. Constitution makers gradually came to fear untrammeled legislative power, so they began to reintroduce the gubernatorial veto but retained a commitment to a functional separation of powers. In 1780, when delegates to the Massachusetts constitutional convention adopted a suspensive gubernatorial veto (one that can be overridden by a supermajority), they defended it on the twin grounds that it would protect executive independence and strengthen the separations of powers.
Framers reaffirmed their commitment to a functional separation of powers by prohibiting executive and judicial officeholders from sitting in legislatures (New Hampshire and New Jersey were exceptions to the bar). This policy expressed fear of both the governor's patronage powers and the concentration of all power in any one branch of government. Worried that governors would corrupt legislatures through patronage, they stripped the executive of significant appointive authority. Because they were as much afraid of an all-powerful legislature as they were of an unrestrained governor, they also prevented legislators from serving in another branch of government. Constitutions not only forbade governors from appointing legislators to executive office, but they also forbade legislators from appointing themselves to executive office. In so doing, they sought to avert the concentration of all governmental power in any one of its branches. In keeping with this principle, judges too were barred from holding posts in the other branches.
Fearing consolidated governmental power, the framers not only separated the powers of government among different branches, they also generally divided legislative power into two houses. Bicameral legislatures bore a formal resemblance to England's House of Commons and House of Lords, but one devoid of traditional meanings. The English and many Americans believed that England had successfully preserved liberty because its constitution carefully balanced the different social estates: monarchy, aristocracy, and democracy. Many of the framers of state constitutions tried to find a similar balance in their governments, but absent a monarch or an aristocracy, English mixed-government theory became irrelevant. In deference to that hallowed theory, several states required somewhat higher property ownership for senators than for representatives, but most did not. The framers who adopted bicameral legislatures regarded both houses as representative of and dependent upon the people. For the founders, divided legislative authority would thwart a single assembly's seizure of all governmental power. Even those most committed to the idea of an independent aristocratic legislative body believed that the primary responsibility of a senate was to prevent heedless or arbitrary behavior by a house. At the opposite end of the political spectrum, the three state constitutions that adopted unicameral legislatures, Pennsylvania, Georgia, and Vermont, obviously rejected many of the tenets of bicameralism. Nevertheless, distrusting unchecked power, they too curbed those assemblies with a variety of institutional checks.
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Fehrenbacher, Don E. Constitutions and Constitutionalism in the Slaveholding South. Athens: University of Georgia Press, 1989.
Kruman, Marc W. Between Authority and Liberty: State Constitution Making in Revolutionary America. Chapel Hill: University of North Carolina Press, 1997.
Lutz, Donald S. Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions. Baton Rouge: Louisiana State University Press, 1980.
——. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.
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Marc W. Kruman