We don’t always get it right the first time. Sometimes, experimentation then leads to true success. Those statements prove true for many situations, professional and private. The Founders experienced both with their first forays into constitution-making in the 1770s and the 1780s. Those efforts included the Articles of Confederation, our first national constitution. Our current Constitution replaced it after a short, tumultuous time.
Here, though, we will focus on the efforts made at the state level. The former colonies needed their own governing documents to set the conditions for rule. These first efforts saw some success and some need for serious improvement.
First, these constitutions got the source of rule correct. The constitution for North Carolina (1776), opened by declaring, “That all political power is vested in and derived from the people only.” New Hampshire (1776) based its constitution’s power on the “free suffrages of the people of said colony.” This reasoning aligned with another document from 1776, the Declaration of Independence. That work of the Second Continental Congress declared that governments derive “their just powers from the consent of the governed.” This point itself derived from the Founders’ commitment to human equality, expressed by the fact that no person should rule another without pre-conditioned agreement.
Second, these constitutions in general got the purpose of government right. Massachusetts’ constitution (1780), penned by John Adams, said the purpose of government resided in the power “to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life.” This reasoning, too, aligned with the Declaration of Independence. It declared that all human beings possessed “unalienable rights,” meaning claims on others that no one else could infringe. It then said that “to secure these rights, governments are instituted among men.” Government exists because we have these rights but cannot adequately enjoy them due to threats from others. Political society forms to offer protection of these rights for their better use by each person.
Third, however, these state constitutions tended to struggle to rightly structure their institutions. In particular, they correctly sought a government organized around the concept of separation of powers. WE must understand this point before saying how they struggled with it. This theory said that government power is based on the rule of laws. However, law requires three functions to rule properly.
First, one must make law—the legislative power. Some may say we could stop there. However, that would leave government inadequate to its task. We know that merely saying what someone should do does not always get obedience. Sometimes people will disobey the law even when they know it. Think of many of us on highways with speed limits. That brings in the second task of government under the rule of law. A government must enforce those made laws—the executive power. Executive power brings coercive force to bear in service of the laws, to make sure people obey them and thus do not infringe on rights. Third and finally, a tribunal must exist to interpret and apply the law when disputes arise regarding it—the judicial power. People may know the law but not agree on whether someone broke or followed it. That factual question is what juries often decide in trials. People may agree on what happened but disagree about the wording of the law in relation to what happened. Judges make these calls, trying to apply the law’s words faithfully to the actions in a case before him or her. Together, these three powers ensure the law rules, both our constitutions and the statutes made under them.
Most state constitutions affirmed separation of powers. Article VI of the Maryland constitution’s declaration of rights (1776) said, “That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.” However, many states structured their separation of powers to make the legislative power too strong and the other branches too weak. Doing so did not deny separation of powers on paper. But it did so in practice.
States such as Pennsylvania and Virginia in particular created very weak executives. They quickly came under the control of the state legislatures. James Madison saw this problem in the 1780s. Having seen what happened with state constitutions, Madison wrote in Federalist 48 that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” In some sense, legislative dominance was natural. Legislative power made the laws that other branches must then carry out. That gave it an advantage. Also, in a popular government, people would see themselves more in the numerous, lawmaking legislature than the much different executive or judicial branches.
We must not underestimate the problem with separation of powers failing in practice in these states. The Founders knew and said that any combination of legislative, executive, and judicial power together led to tyranny. It did so because it allowed one entity to take over the laws and start using them as it wished. The law then became a tool for human beings to oppress one another, not a guide and restraint to rule over them.
Thankfully, not all constitutions fell prey to this problem. New York’s 1778 constitution, for example, gave a strong executive that maintained independence from that state’s legislature. It became an example members of the Constitutional Convention looked to for constructing our American President. In other ways, our Founders learned from the other states’ mistakes in how they constructed the national Constitution. They put in a system of checks and balances to work alongside separation of powers. These checks gave each branch ways to limit the power of the other branch. Ambition would check ambition, as Madison would write in Federalist 51. Sometimes, these checks even meant giving a little of one branch’s power to another. Thus, the president’s veto power is a legislative power to make laws. But it helps protect that office against legislative encroachments. Even the powerful Congress possesses the impeachment power, lest a president or judges usurp their power or the Constitution’s.
Thus, we can be thankful we no longer have the state constitutions of the 1770s and 1780s. They needed improved upon. But we also should thank them for the good they did. They set out the proper origin and purpose of government, a commitment we only reinforced through our subsequent history. And they taught us how to structure our government better. They gave us the experience that showed how to separate governmental powers to support the rule of law and by it human equality and liberty.
Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.