Guest Essayist: Gary Porter
U.S. Bill of Rights


Before I begin this discussion, I should like to highlight two books which cover this topic quite well, in far more detail than I can include here: The First American Constitutions, by Willi Paul Adams, first published in 1973 in Germany, later, in 2001 in the U.S., and The Origins of American Constitutionalism, published in 1988 by Donald S. Lutz. Both are well-written, well-documented and well-worth your time.

We tend to view the American War for Independence in simplistic terms: parliament overreached; the colonies balked, declared their independence, fought a war to secure that independence, and went on to establish a unique written Constitution “of the people, by the people and for the people.” But as any historian knows, the story is more complicated. While the later part of the 1700s, at least in America, was indeed dominated by the War for Independence, “[t]he last three decades of the eighteenth century were a time of extraordinary political experimentation and innovation,” [i] writes Donald Lutz, and the American Revolutionary War “just happened” to occur during that extraordinary time.

The U.S. Constitution has at various times and by various writers been called the product of the Enlightenment, Classical Greek philosophy, Protest theology, the Hebrew Republic, English common law and English Whig political theory, and some of its roots can easily be traced to these predecessors; but many overlook its connections to the first state constitutions. “The early state constitutions contributed significantly to the development of [the] constitutional principles [found in the U.S. Constitution].”[ii]Anyone who will lay the Federal Constitution side by side with the State Constitution of Massachusetts (adopted in 1780) and with the State Constitution of New York (adopted in 1777) will be startled by the extent to which the members of the Federal Convention not only followed the principles, but used the exact phraseology of those State documents.”[iii]

By 1787, when fifty-five men met in Philadelphia to “render the federal Constitution adequate to the exigencies of the Government and the preservation of the Union,”[iv] all but two of the thirteen states had already set in place a new state constitution.[v] Of those fifty-five men, almost half (26) had served in their state legislatures, including participating in the drafting of their state’s new plan of government.

References to numerous state constitutional provisions were made during the “Grand Convention.” One of the last being on September 12th, just five days before the Constitution was completed and signed.  Virginia delegate, George Mason, rose to point out that the absence of a Bill of Rights in the draft they were then considering was a matter of great concern. “It would give great quiet to the people (to have a Bill of Rights); and with the aid of the State declarations, a bill might be prepared in a few hours.” Colonel Mason, you may recall, had been the chief architect of the Virginia Declaration of Rights of 1776; thus, he was eminently qualified and experienced to draft yet another declaration.  But Mr. Roger Sherman of Connecticut then rose to point out that “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” A motion was made to establish a committee to draft a bill of rights, but the motion failed 0-9, and the delegates went on to put the final touches on the document they had labored over for four long months.

But let’s step back a bit in time and review what prompted this “extraordinary political experimentation and innovation.”

Rising tensions between Great Britain and the American colonies had led to the suspension of state assemblies in Massachusetts, New York, Virginia. Other Royal Governors simply fled their posts. Leaving a society without government and/or leadership invites anarchy. Thomas Jefferson complained of this in the Declaration of Independence:

He (i.e., the King) has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

Without their state assemblies in operation and to mitigate “the dangers of invasion from without, and convulsions within,” Committees of Correspondence, Committees of Inspection and Committees of Safety became shadow state governments. Eventually, provisional assemblies were formed and these sought advice from the Continental Congress, which began meeting in September 1774.

The State of New Hampshire figures prominently in America’s constitutional history: their ratification of our U.S. Constitution on June 21, 1788, was the ninth and final ratification necessary to put the document into effect. The subsequent ratifications, by Virginia, New York, North Carolina and Rhode Island, only ensured those states would be participants in the new union rather than bystanders. But few Americans today know that New Hampshire was also the very first colony to enact a new constitution, on January 5th, 1776, a full seven months before the united colonies declared their independence in Philadelphia. New Hampshire had asked the Congress for permission to do so in the Fall of 1775, even suggesting that Congress draft a standard state constitution that each state would then adopt. Congress debated this but decided that there were so many differences in the state governments that had evolved over a hundred or more years that a “one size fits all” approach would simply not work. Congress finally gave New Hampshire and South Carolina the “go-ahead” on November 3rd, 1775.

South Carolina followed New Hampshire’s lead with a new provisional constitution of their own on March 26, 1776. On May 4th., Rhode Island unilaterally declared its independence from Great Britain without finding it necessary to establish a new plan of government; their original charter, stripped of its monarchical references, would serve adequately.

Two days later, Virginia began the fifth in a series of conventions.  Meeting in Williamsburg, the delegates approved a Declaration of Rights on June 12th and their new constitution on June 29th.

Noting the actions of New Hampshire, South Carolina, and Rhode Island, and perhaps trying to “get ahead of the curve,” the Continental Congress on May 10th approved a circular to the thirteen colonies encouraging any of the colonies who had not yet done so to form new provisional governments. After adding a preamble on 15 May, the circular was sent. [vi] On July 2, 1776, the same day Richard Henry Lee’s resolution for independence was approved in the Congress, New Jersey ratified its new constitution.

All but one of the remaining states approved new constitutions within a year: Delaware (September 11, 1776), Pennsylvania (September 28, 1776), Maryland (November 8, 1776), North Carolina (December 14, 1776), Georgia (February 4, 1777), and New York (April 20, 1777). Connecticut, like Rhode Island, decided its existing charter provided an adequate government. Other than Rhode Island and Connecticut, Massachusetts became the last state to adopt a new constitution, in 1780.[vii]  In the years that followed, several states updated or replaced their provisional constitutions.

As each colony-turned-state began drafting their new constitution they drew upon, in Virginia’s case for instance, the experience of more than 100 years of self-governance. Each colony had an elected assembly, either unicameral or bicameral, a court system, and a Royal Governor appointed by the King but usually also advised by a Governor’s Council. By 1773, however, the aforementioned committees were governing towns and counties, and soon nearly all the colonies had established provincial congresses acting outside royal authority.[viii]

Despite their practical experience in governing, the states found constitution-making from scratch a relatively new, untested process. What features of their colonial government should they retain, which should be modified or abandoned altogether? Hanging over all this constitution-making were the Articles of Confederation. For nearly four years (November 1777 – March 1791) the Articles lacked the unanimous consent they needed to be in official operation, yet there was a war afoot; no time to wait for Maryland to come on board; Congress had no choice but to act as though the Articles were ratified. How well would these new state governments work with the Confederation Congress?  Not well at all as it turned out. But the blame should be placed on the Articles, not the states.

The Continental Congress continued to function as a rudimentary, unicameral central government under the Articles of Confederation, yet in 1776-77, as the states drafted their new plans of government, the confederation’s more glaring deficiencies were yet to be revealed. What did the states come up with?

  • First, what should we call this thing? Although the nomenclature shift from “charter” to “constitution” was slow and inconsistent, eventually all states settled on some variation of that term; Virginia, Maryland, and North Carolina termed their initial document “The Constitution or Form of Government”; Pennsylvania: a “Plan or Frame of Government”; Delaware: “The Constitution or System of Government”; Georgia: “Rules and Regulations for the Future Government of the State.”
  • Division of the government into three distinct branches (most of the thirteen State constitutions had this feature). Virginia’s constitution reads: “That the legislative and executive powers of the State should be separate and distinct from the judiciary.”[ix]
  • Checks and balances. “They had encountered evil or unfortunate conditions in the past, in their royal and State governments; and they planned now to avoid a renewal of those conditions by adopting theories to fit the circumstances. So far from intending each of the three branches to be wholly coordinate, they decided to curb any excess of power in any one branch by balancing it with an effective power in another. Where they had experienced an evil in an omnipotent Legislature, they checked it; where they had actually felt the oppression of a too strong Executive, they checked him; where they believed a Court had been too independent, they checked it.”[x]
  • The Franchise. Generally, men (and in some states, women) who owned a certain minimum amount of property could vote. Pennsylvania enfranchised any male who paid taxes.
  • Elective Government. All states established direct popular elections for at least the Lower House of the legislature, with annual elections being the rule. Ten states also chose annual elections for the Senate, whether by the people or the lower house. Eleven states instituted annual elections of the governor, in three states directly or indirectly by the people, in the others by the legislature. Interestingly, South Carolina set a net worth requirement for their governor, the only state to do so.
  • The Legislature. While most colonies had operated with a unicameral legislature up until independence, often augmented by a Governor’s council, all but one state chose a bicameral legislature for their new constitutions, with Pennsylvania being the lone exception (Pennsylvania joined the bicameral states fifteen years later).
  • The Executive. In a rejection of powerful royal governors appointed by the King, the states, at least Initially, made their governors almost powerless. Although problems created by a weak executive soon became apparent and were slowly corrected, “[b]y 1787, only four states had executives worthy of the name.[xi]
  • The Judiciary. Most states instituted an appointed judiciary, often appointed by the Governor (four states) or the Legislature (seven states).
  • Consent of the governed. In all but one state, the new constitution was simply put in effect as though it were a simple law. There were some murmurings, but the citizens generally accepted this “constitution by fiat.” But to be fair to the legislatures involved, they felt themselves to be representatives of the people.

Many states kept the other major features of the governmental structure that served them for so many years. One example from Delaware: “The sheriffs and coroners of the respective counties shall be chosen annually, as heretofore.”

So, what can rightfully be called innovations in the state constitutions? I’ve encountered few that could be called truly radical, but Delaware’s Constitution provides some examples:

  • A Declaration of Rights preceded the Constitution (Virginia led the way in this).
  • In Delaware alone were elected officials impeachable up to 18 months after leaving office.
  • Delaware’s Article 26 prohibited slavery, one of the first states to do so constitutionally.
  • No firearms were allowed to be carried at any election.
  • There was to be no establishment of any one religious sect in preference to another.
  • “No clergyman or preacher of the gospel…shall be capable of holding any civil office in this State.” (other states incorporated this feature as well).
  • The oath before assuming office in Delaware read: “I, ___, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.”

What of the various state bills or declarations of rights?  How did they compare with what eventually became the U.S. Constitution’s Bill of Rights?

Beginning with Massachusetts, the Anti-federalists began insisting that their vote for ratification would only materialize if there were a “gentleman’s agreement” that both amendments and articles for a future bill of rights would be accepted and submitted with the ratification instrument. When he arrived at the first Congress under the new U.S. Constitution, James Madison set to work reviewing these submissions from the states and incorporating those with the greatest appeal. It should come as no surprise to find parallels between the state Declarations and what became the U.S. Bill of Rights. But there were exceptions – suggestions that were either rejected by Madison or rejected by the Congress after Madison included them in his draft to the Congress. Notably, several verbatim quotes from Virginia’s Declaration of Rights were rejected by the Congress after appearing in the draft.

In summary, as Willi Paul Adams concludes: “The most significant accomplishment of the American Revolution, apart from the military achievement of independence, was the successful establishment of republican, federal, and constitutional government in a territory so extensive by European standards that conventional wisdom considered only monarchical government suitable for such an empire.”[xii]

Donald Lutz takes a different view: “[t]he (U.S.) Constitution … successfully created a new constitutional system appropriate to new political circumstances, it conserved what was best and central in the earlier American constitutional tradition, and it bult upon and in many important respects derived from state constitutions.”[xiii](emphasis added)

While the American states were intended to be experiments in government, and they have in many respects played that role over our 230+ years, there was still remarkable similarity in the thinking of the drafters of the early state constitutions as they considered what were the ingredients to “good government.” The fact that Massachusetts operates today from their 1780 Constitution, albeit with 120 amendments, remains a testament to the wisdom of America’s founding generation.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988. p. 97.

[ii] Donald S. Lutz, Ibid. p`. 99.

[iii] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925

[iv] Resolution of the Confederation Congress, February 21, 1787.

[v] Rhode Island decided to retain the structure of government described in their Royal Charter although the linkage to the British government had of course been severed. Rhode Island operated from this modified charter until 1842.

[vi]Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”

[vii] Giving Massachusetts the distinction of having the longest continuously-operating constitution in the world today.

[viii] https://en.wikipedia.org/wiki/Colonial_government_in_the_Thirteen_Colonies

[ix] Virginia Constitution, 1776, Article 1, Declaration of Rights, Sec. 5.

[x] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925, p. 24

[xi] Donald S. Lutz, Ibid. p. 106

[xii] Willi Paul Adams, The first American Constitutions, 2001, p. 5-6.

[xiii] Donald S. Lutz, Ibid. p. 109

 

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