Guest Essayist: Charles F. Vaughan

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The eighth state to ratify the U.S. Constitution, South Carolina, was admitted to the United States May 23, 1788. It was also the first state to secede from the Union. The current South Carolina State Constitution was adopted in 1896.

Albemarle Point, located on the Ashley River, was established in 1670 as the first permanent English settlement in South Carolina. It was under the supervision of the eight lords proprietors who had been granted “Carolana” by King Charles II. Ten years later, settlers moved across the river to the present site of Charleston.

From its very beginning, South Carolina had a constitution in the form of the Fundamental Constitutions of Carolina. Although never fully ratified by the colonists and eventually jettisoned in 1698, it did shape political power and land distribution in the colony. Co-authored by John Locke and Lord Anthony Ashley Cooper, 1st Earl of Shaftesbury, it was notable for its religious tolerance, providing right to worship to religious dissenters of Christianity, Jews, and Native Americans. It offered sanctuary for groups seeking refuge from religious persecution in Europe. The constitution promoted slavery and an aristocracy which could wield absolute power over their enslaved Africans. This set the stage for the next 200 years.

South Carolina became a Royal Colony in 1729. The colony experienced very minimal royal control, apart from the appointments of Royal Governors. A period of salutary neglect on the part of the British Crown enabled government to evolve in such a way that served the needs of the lowcountry elite. The House of Commons Assembly and Privy Council were modeled after the English Parliament.

Since the colonial period, South Carolina has had seven constitutions, dating from 1776, 1778, 1790, 1861, 1865, 1868, and 1895. The Constitution of 1776 became necessary after Governor Loyd Campbell fled the colony over tensions between the colonies and England. Approved by the Provincial Congress of South Carolina, the Constitution incorporated previous royal instructions but originated from the people of South Carolina. This plan of government was to last until the disputes with Great Britain could be settled. It established a bicameral legislative branch, the General Assembly, with members of the lower house elected by the people, and members of the upper house elected by the lower house. In place of a governor, there was a president, selected by both houses. The president had veto power and could only serve one term in office. The upper house also elected a vice president and a chief justice. The judicial branch remained unchanged from the colonial system.

There existed an unequal distribution of power in the new government, with the upper house dominated by lowcountry elite even though the majority of the white population resided in the upcountry. Representation in the lower house was shared a little more equally between the lowcountry and upcountry.

The Constitution of 1778 created strict property requirements for the franchise. White men had to possess a significant amount of property to vote, and had to own even more property to be allowed to run for political office. In fact, these property requirements were so high that 90 percent of all white adults were prevented from running for political office. The office of president became the governor, whose election remained purview of the General Assembly. The upper house, renamed the South Carolina Senate, was popularly elected. Representation in the legislature was reapportioned so that the upcountry had forty percent of the seats. In 1786 the General Assembly relocated the capital from Charleston to Columbia as a way to express increased statewide unity. The following year the General Assembly banned the importation of new slaves.

On May 23, 1788, South Carolina ratified the United States Constitution. This necessitated a new constitution. In June 1790, a convention of elected delegates from across the state unanimously ratified the Constitution of 1790, which served the state until 1861. Lowcountry elite continued its dominance of the legislature as seats were apportioned on the basis of wealth. The governor, elected by the General Assembly, had no veto power. Voting was limited to white males who had to meet strict property requirements. The General Assembly made all laws and elected all holders of major offices, including governor, presidential electors, U.S. senators, and many local officials. The General Assembly adhered to the notion of aristocratic stability- control by white males who owned land and slaves. This cohesion of political and economic thought would eventually lead many to support secession.

Sectional tensions in the 1830s, 1840s, and 1850s finally came to a head in November, 1860 with the election of Abraham Lincoln. On December 20, 1860, a special Secession Convention approved the Ordinance of Secession. The 1790 constitution was amended to note the withdrawal from the federal Union. The Constitution of 1861 continued the election of the governor by the General Assembly and did not change much from the 1790 constitution.

At the conclusion of the Civil War, South Carolina had to adopt a new constitution to be readmitted into the Union. The Constitution of 1865 preserved many values of the planter elite. It moved closer to a balance between the lowcountry and upcountry in the Senate. The House of Representatives was apportioned based on white population and taxed land value. Legislators continued to select U.S. senators and presidential electors. The governor was popularly elected to a four-year term and was given veto power. The civil rights of former enslaved African Americans were ill defined.  Passage of strict Black Codes designed to regulate former slaves and election to Congress of former Confederate heroes resulted in Congress ordering the creation of a new constitution.

Congressional Reconstruction led to the Constitutional Convention of 1868. Many whites refused to participate as African American men were allowed to vote for the first time. This constitution is the only one to be submitted directly to the voters for approval. Congress ratified it on April 16, 1868.

It was a revolutionary constitution for South Carolina. Representation in the House was based solely on population. The governor continued to be popularly elected. For the first time, it provided for public education open to all races, granted some rights to women, and replaced districts with counties. Property ownership as a qualification to run for public office was abolished. Race as a limit on male suffrage and Black Codes in the 1865 constitution were also abolished.

Following a series of economic downturns in the state, the Constitution of 1898 was adopted by convention and not submitted to the people in referendum. It instituted Jim Crow laws aimed at disenfranchising the state’s African American population while protecting  the state’s poor, illiterate whites. A poll tax was instituted, and men who paid property tax and were able to write and read the state constitution could vote. Local registrars determined who could vote. The poll tax was abolished in 1951 and the Voting Rights Act of 1965 terminated unregulated local voter registration.

The General Assembly maintained its supremacy over the governor and local politics. To dilute the power of the governor, the executive department was split into many local boards and state agencies. The governor was limited to a two-year term with possibility of one reelection.

By the 1960s, the constitution had been amended over 300 times. Throughout the decade, a committee studied the 1895 constitution. In 1970 voters approved changes to five articles. Work continues to reform the constitution and state government. More recent changes have made the executive and judicial branches more independent from the legislative branch and local governments that are more responsive to the people than the General Assembly.

Dr. Charles F. Vaughan us a National Board Certified social studies teacher. A 24-year classroom veteran, Dr. Vaughan currently teaches World Geography and Teacher Cadet at AC Flora High School in Columbia, SC. He earned his Doctor of Education in Curriculum and Instruction from the University of South Carolina. His dissertation, “Official social studies curriculum standards: An analysis of Southern political, cultural, and historical contexts” is a critical analysis of “official knowledge” contained within state social studies standards. 

Guest Essayist: Kyle A. Scott

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Thomas Jefferson, and all those who agree with and find inspiration in the Declaration of Independence, support secession. There is no denying that the Declaration was a statement of secession “When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another…”. Thomas Jefferson stayed true to this point when writing in the Kentucky Resolution (1798) that “the several states who formed that instrument (the U.S. Constitution), being sovereign and independent, have the unquestionable right to judge of its infraction…” Secession is an inherent right in governing bodies and the states themselves ought to have sovereignty over the decision to secede.

The Declaration of Independence was a solidification of prior state action rather than a moment of instigation. Beginning in 1775 the former colonies began declaring themselves states rather than colonies and writing their own constitutions with New Hampshire becoming the first in January 1776 followed by Virginia, South Carolina, New Jersey. Rhode Island renounced its allegiance to Britain and revised its charter a full two months before the Declaration of Independence was adopted. These independent states joined together in an act of secession as they were seeking to dissolve the political bands that tied them to Great Britain. Each colony that fought against the crown was a secessionist regime. Secession is a central part of this nation’s founding sown at the time of its founding.

At the time of the nation’s founding the states considered themselves to be sovereign entities that could compact together to address common needs, and it could reverse that decision if the common governing body no longer fulfilled its duty. Sovereignty was not relinquished. This is not only documented, but procedurally it is reinforced in that each state needed to ratify the primary governing documents before those documents took effect within that state’s legal jurisdiction. For instance, the U.S. Constitution was drafted by a committee in Philadelphia, it was then sent to the states to ratify individually. And while the Constitution only required nine of the thirteen states to be put into effect, only those states that had ratified it would be part of the Union. Those who had not ratified could not take part in the new government. This is a continuation of the political practice started with the Articles of Confederation in which the Second Continental Congress drafted and approved the Articles but then sent them to each state for independent ratification. The same is true of the Declaration of Independence—no state was forced against its will to fight the British once a majority of states accepted the Declaration; rather, it required unanimous consent from each state in Congress.

Secessionist thought is often commingled with the U.S. Civil War, but one of the first moves toward secession after the formation of the United States was undertaken by the New England Federalist Party between 1814-1815 in reaction to the War of 1812 at what is known as the Hartford Convention. Lest we forget that Tennessee was formed through secession from North Carolina, Kentucky from Virginia, and Maine from Massachusetts. Secession is neither uniquely American with Sweden seceding from Norway, Belgium from the Dutch, and Eritrea from Ethiopia to name only a few. But for most Americans our understanding of secession is clouded by the war between the states and the subsequent Supreme Court decision of Texas v White (1869) that declared secession unconstitutional despite historical and normative claims to the contrary.

Almost without exception a discussion of secession introduces the issue of slavery. But that is a product of an undisciplined mind that cannot separate two mutually exclusive ideas rather than a fact of reality. Secession is about self-determination; it is the ultimate weapon against tyrannical government. As Jefferson writes, “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…” A people unable to dissolve political bonds are a people who no longer have the ability to preserve the rights endowed to them by their Creator but have instead given all authority to some distant governing body. This would be antithetical to every precedent-setting document one could read at the time of the founding. To say that states gave up their right to secede when they ratified the Constitution is to not understand the founders as they understood themselves. A people committed to freedom and liberty would not so willingly give up the very thing that allowed them to be free in the first place.

Kyle Scott, PhD, MBA serves on the Board of Trustees for the Lone Star College System and teaches political science at the University of Houston and is an affiliated scholar with the Baylor College of Medicine’s Center for Health Policy and Medical Ethics. Kyle has authored over 70 op-eds, dozens of academic articles and five books, the most recent of which is The Limits of Politics: Making the Case for Literature in Political Analysis. He can be reached at kyle.a.scott@hotmail.com or on Twitter: @kanthonyscott 

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Guest Essayist: Gary Porter

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Maryland is the seventh state admitted to the United States, ratifying the U.S. Constitution April 28, 1788. The current Maryland State Constitution in use was adopted in 1867.

Maryland was the seventh state to ratify the U.S. Constitution, on April 28, 1788. Two months later the U.S. Constitution went into effect with New Hampshire’s ratification on June 21. A study of the “Old Line State” (we’ll see where that appellation comes from in a moment) provides a convenient entry point to address several different constitutional topics; but first a little history:

It is August 27, 1776; the British have mounted their anticipated invasion of Long Island, New York. British General William Howe commits 20,000 of his best troops to the fight, including 8,000 Hessians, against approximately 6,000 ill-equipped and ill-experienced Americans (20,000 to 6,000; hardly seems a fair fight). Howe splits his forces across three fronts and executes a daring nighttime flanking maneuver that utterly surprises the American forces. The Americans are soon routed from their defensive lines and forced to retreat onto fortified Brooklyn Heights. To buy time for the withdrawal, Washington orders General William Stirling, commanding two units of the 1st Delaware Regiment as well as four companies from the 1st Maryland Regiment, to hold his line on the Gowanus Road. The 1st Maryland Regiment (part of the “Maryland Line”) is under the temporary command of Major Mordecai Gist (the unit’s commander, Colonel William Smallwood, is attending court martial duty in the city). The British attack up the Gowanus Road consists of 2,000 troops under the command of General James Grant. The Marylanders, soon reduced to less than 400 men (The Immortal 400)[1] are ordered to hold the line near Vechte-Cortelyou house, a stone building commanding the strategic road and a bridge, the only escape route across the Gowanus Salt Marsh. Not only do Gist’s men hold off the British, they make six amazing counterattacks before being finally forced to scatter and make their own escape back to American lines. Only a handful of the Maryland men are successful. Watching from Brooklyn Heights, General Washington turns to General Israel Putnam and states: ‘Good God, what brave fellows I must this day lose.” The Maryland 1st Infantry will go down in history as “The Old Line,” giving Maryland its claim as “The Old Line State.”[2] Historian, Thomas Field, writing his 1869 book “The Battle of Long Island,” called the stand of the Marylanders “an hour more precious to liberty than any other in history.”[3] As we will see, Maryland will go on to make other important contributions to the establishment of the American union.

In 1632, Lord George Calvert, a convert to Catholicism, was granted a charter by King Charles I to establish “The Province of Maryland.”[4] Actual settlement began two years later, first along the Chesapeake Bay and then proceeding slowly but inexorably westward. Calvert envisioned a colony where religious tolerance would prevail, especially towards his fellow Catholics. Accordingly, in 1649, the Maryland General Assembly passed an Act Concerning Religion which made it a crime to harass a fellow citizen of the colony over their religious preferences. Maryland would eventually gain the largest concentration of Catholics of any of the colonies, to include, in 1715, one John Porter, immigrant ancestor of the writer of this essay. Family legend holds that John was “asked” to leave England after composing and singing publicly a song not entirely complementary of the new reigning monarch: George I of Hanover, brought over from Germany the previous year to take the English throne.

With its moderate weather, 4,000 miles of shoreline and a fine port at Baltimore, Maryland grew to nearly 250,000 inhabitants by 1776.[5] Maryland’s current boundaries were solidified following the settlement of a long-running dispute with Pennsylvania and completion, in 1767, of the Mason-Dixon Line, a project to which two sons of the aforementioned immigrant John Porter allegedly contributed as the surveying team reached the westernmost parts of the state. It would not be until 1820, however, that the term “Mason-Dixon Line” came into common usage. The Missouri Compromise used the term to define the boundary between slave territory and free territory (remember this, we encounter it again).

While no major battles of the Revolution were fought within the state (that would change with the War of 1812 and the Civil War), Maryland was an active participant in the events leading up to the Revolution. In 1776, its delegates, Charles Carroll, Samuel Chase, Thomas Stone, William Paca, signed the Declaration of Independence (with Carroll being the only Catholic to sign). “Charles Carroll of Carrollton” had been an early proponent of independence from the mother country, writing often in the Maryland Gazette under the pseudonym “First Citizen,” and serving on various Committees of Correspondence. A devout man, in a November 4, 1800, letter to James McHenry (of Fort McHenry fame) Carroll wrote: “Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime and pure…are undermining the solid foundation of morals, the best security for the duration of free governments.” When he died in 1832, Carroll was the last surviving signer of the Declaration and acquired the distinction (dying at 95 years of age) of being the oldest lived Founding Father.

Like other states, Marylanders were bitterly divided as the Revolutionary War loomed; many Loyalists in the state refused to support the Revolution, and saw their lands and estates confiscated as a result.

Responding to a resolution of Congress of May 10, 1776, Maryland’s provincial congress recommended formation of a convention to form a new constitution to replace its royal charter. Fifty-three delegates assembled on August 14, and completed their work on November 8. While the new constitution kept most of the features of government intact, the state’s property qualification for suffrage was lowered from thirty to five British pounds, greatly expanding the electorate. Ironically, following the example set by Virginia earlier that year, on November 8, 1776, the convention put their new constitution into effect by voice vote, without bothering to submit the document to Maryland’s newly expanded electorate.

“Baltimore Town” served as the temporary capital of the confederated states from December 1776 to February 1777, while Philadelphia was occupied by the British. Towards the end of the war, from November 1783, to June 1784, Annapolis, briefly hosted the confederation government, and it was in the Old Senate Chamber of the Maryland State House in Annapolis on December 23, 1783, that General George Washington famously resigned his commission as commander-in-chief of the Continental Army. It was there also, on January 14, 1784, that the Treaty of Paris was ratified, officially ending the Revolutionary War.

Maryland was the last of the thirteen states to ratify the Articles of Confederation, on March 1, 1781, and then only when France threatened to withdraw its treaty-guaranteed protection of the Chesapeake Bay. Maryland had been insisting that the territory north of the Ohio River be ceded to the confederation government by the several states which maintained conflicting claims on it. Virginia’s government agreed to cede its claim to the land but demanded that the claims of Maryland’s land speculators be declared void. Maryland objected, but faced with France’s threat, they ratified the Articles. The event was celebrated across the colonies with fireworks, bonfires and the ringing of church bells.

In September 1786, Maryland played host to the “Annapolis Convention” which produced the famous call for a “Grand Convention,” to take place in Philadelphia the following May. On September 17, 1787, Daniel Carroll (a cousin of Charles Carroll of Carrollton), Daniel Jenifer and James McHenry (of Fort McHenry fame) would share the honor of signing the new constitution for their state.

On April 28, 1788, after a short, five day discussion, Maryland became the seventh state to ratify the U.S. Constitution, by a vote of 63–11.

According to the U.S. Constitution (Article 1, Section 8, Clause 17), the District of Columbia was to be formed from land donated by “particular States.” That turned out to be both Maryland and Virginia; and each state ceded the required land in 1790. But in 1846, with the capitol by now well established, but on only the north side of the Potomac River, Congress returned Virginia’s portion, leaving the District completely within Maryland’s former boundaries.

In August 1814, the state experienced, first-hand, a new war with Britain. In the Battle of Bladensburg,[6] which saw the first appearance on a U.S. battlefield of a sitting U.S. President (second-term-President James Madison). British troops easily pushed back a hastily formed composite force of militia and regular troops and continued their march on “Washington City.” The following month, the unsuccessful British siege of Fort McHenry provided the backdrop for the composition of our National Anthem by Maryland native Francis Scott Key.

Forty-five years later, Maryland pondered whether to join the growing list of seceding states south of the now famous Mason-Dixon Line. The state had effectively legalized slavery more than one hundred years before (in 1752) when it prohibited the manumission of slaves, and many citizens were eager to join the confederacy. An early vote of the legislature, which might have gone for secession, was stifled by President Abraham Lincoln’s declaration of martial law and his unconstitutional suspension of Habeas Corpus. When the Maryland legislature finally took up the matter, they voted 53-13 to remain in the Union. While many today claim that the (inaccurately named) Civil War[7] settled the idea of secession, the issue, as we will see later, is still very much alive.

The first fatalities of the Civil War (called in the South, more accurately, the War for Southern Independence) occurred during riots which took place in Baltimore on April 18 and 19, 1861. Union troops moving from one train station to another to continue their journey southward to protect Washington, D.C. were confronted by an angry and armed mob. The troops, set upon with “bricks, paving stones, and pistols,” fired on the crowd. When the smoke cleared, four soldiers and twelve civilians had been killed. Small skirmishes between citizens and police occurred throughout the city for the next month.

Determined to keep a route through Maryland open for the transport of troops and supplies from the northern states, on April 27, President Lincoln authorized General Winfield Scott to suspend the writ of habeas corpus near any military supply line between Philadelphia and Washington “if the public safety required it.”

On September 17, 1862, Confederate forces were defeated at Antietam, just west of Frederick, Maryland (hometown of the then Chief Justice Roger Taney). Remembered as the “Single Bloodiest Day of the Civil War,” the Battle of Antietam (known in the South as the Battle of Sharpsburg) caused more than 23,000 casualties.

A week later, as a result of continued unrest, particularly in Maryland but elsewhere in the Union as well. Lincoln issued a proclamation stating that “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission.” Further “That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.”[8] (Emphasis added)

Lincoln later explained his actions in a letter to Albert G. Hodges on April 4, 1864, by stating: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”[9]

In July 1864, the little-known Battle of Monocacy was also fought on Maryland soil, again near Frederick.

The 1864 Maryland Constitution, ratified in October, freed the state’s slaves a year before ratification of the 13th Amendment.[10] On April 14, 1865, Marylander John Wilkes Booth assassinated President Lincoln.

Today’s Maryland government is based on its 1867 Constitution, the last of four. The 1776 constitution was followed by a second in 1851, and a third in 1864. At approximately 47,000 words, today’s Maryland Constitution is much longer than the average length of a U.S. state constitution (about 26,000 words). By comparison, the United States Constitution, including amendments, is only about 8,700 words long.

When compared with the U.S. Bill of Rights, Maryland’s 1776 Constitution lacked specific protections for:

  • Freedom of Speech and Freedom of Assembly (U.S. 1st Amendment)
  • A Right to Keep and Bear Arms (U.S. 2nd Note: Maryland is one of the few states still lacking the equivalent of the Federal Second Amendment)
  • Right to a Grand Jury when Life/Limb is imperiled, protection against double jeopardy and protection of private property against government taking without compensation (all found in the U.S. 5th Amendment)
  • Protection of unenumerated rights (U.S. 9th Amendment, this was added in the 1851 Constitution)
  • Reservation of non-delegated powers to the states/people (U.S. 10th Amendment, this was added in the 1867 Constitution)

Conversely, Maryland’s Declaration of Rights today contains the following protections and principles not found in the U.S. Bill of Rights:

  • A relief from taxation for all “paupers.” (still there!)
  • Protection of the common law of England. (still there!)
  • A right to trial by jury (this right is assumed by the Constitution but only secured for certain classes of citizens).
  • Juries in criminal cases are declared to be judges of law as well as fact (jury nullification, added in the 1867 Constitution, see below).
  • A statement that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.”
  • A statement that “the people of the State ought to have the sole and exclusive right of regulating the internal government and police thereof.”
  • A statement that “all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct.”
  • A statement that “every man, having property in, a common interest with, and an attachment to the community, ought to have a right of suffrage” (whether U.S. citizen or not?).
  • A statement that “the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.”
  • A statement that no power of suspending laws, or the execution of laws, unless by or derived from the Legislature, ought to be exercised or allowed.
  • A statement that “no aid, charge, tax, fee, or fees, ought to be set, rated, or levied, under any presence, without consent of the Legislature.” (No taxation without representation!)
  • A statement that “the levying taxes by the poll is grievous and oppressive.” (I.e. no poll taxes will be allowed)

We should take a moment here to note the uniqueness of Maryland securing a right of jury nullification in its constitution. To my knowledge it is the only U.S. state to do so. In 2002, South Dakota voters rejected a state constitutional amendment to permit criminal defendants to argue in favor of jury nullification; and in 2012, New Hampshire passed a law explicitly allowing defense attorneys to inform juries about their right of jury nullification, only to have the New Hampshire Supreme Court effectively nullify the law.[11]

The ability of a jury to refuse to return a guilty verdict because it feels the underlying law to be unjust has a rich history going back to at least Magna Carta (1215), if not before — the famous trial of William Penn being the perfect example.[12] In this country, the practice was common from before the Revolutionary War to beyond 1850 when rampant jury nullification of the Fugitive Slave Act occurred throughout the North. The Supreme Court has never taken up the issue but Associate Justice Sonya Sotomayer apparently views it favorably.[13]

The primary impetus for the 1851 Constitution was a desire to reapportion the Maryland General Assembly. This constitution also changed the status of the City of Baltimore and its relationship with the surrounding Baltimore County. The city was given the status of the (soon-to-be) 23 counties of the State and a provision for “home rule.” Growing criticism of the 1851 Constitution, especially relating to how the judiciary functioned, led to pressure for yet another revision.

The 1864 Constitution was written in the midst of the Civil War. Unionists controlled the Maryland government at the time and made some significant changes to the document. It was approved by a bare majority (50.31%) of the state’s eligible voters, which included Union soldiers from other states temporarily assigned to Maryland! Perhaps its most controversial feature was the temporarily disfranchisement of the approximately 25,000 Marylanders who were at that time fighting for or supporting the Confederacy.

Only three years later, the Constitution of 1867 was approved. As noted, it still operates today. Subsequent amendments have been approved which brought changes to the wording in the main constitution and amendments to the Declaration of Rights, the last of these occurring in 2010.

In 2019, Maryland is home to slightly more that 6 Million people.[14] Interestingly, its state government has been continuously controlled by the Democratic Party for nearly 100 years. In 2013, frustrated conservatives in the five western-most counties famously mounted an effort to secede from the remainder of the state and form a new one, called Western Maryland.[15] This call to secede joined similar efforts in California, Arizona, Michigan and Colorado — proving that the issue of secession lives on.

The “Old Line State” has produced many noted politicians and four Supreme Court Justices. They include:

  • Spiro T. Agnew, former Governor of Maryland and Vice President of the United States
  • Sargent Shriver, former Vice Presidential candidate
  • John Bolton, former United States Ambassador to the United Nations
  • Steny Hoyer, current House Minority Whip, U.S. House of Representatives
  • Nancy Pelosi, current Speaker of the U.S. House of Representatives
  • Samuel Chase, former Associate Justice of the Supreme Court
  • Roger Taney, former Chief Justice of the United States
  • Thurgood Marshall, former Associate Justice of the Supreme Court
  • Brett Kavanaugh, current Associate Justice of the Supreme Court

The Old Line State provides both the historian and constitutional scholar much to occupy their time. With one of the oldest state constitutions still operating today, including one of the longest Declarations of Rights, a detailed study of the rights of Maryland’s citizens will be time well spent.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Some accounts put the unit at 260 remaining men, of which only a handful survived the day.

[2] The story of the “Maryland 400’s” heroic stand is told by Patrick K. O’Donnell in Washington’s Immortals: The Untold Story of an Elite Regiment Who Changed the Course of the Revolution.

[3] https://books.google.com/books/about/The_battle_of_Long_Island.html?id=TFYOAAAAIAAJ.

[4] Named after the King’s wife, the former French princess Henrietta Maria, aka Queen Mary.

[5] https://plymouthcolonytourism.weebly.com/population.html.

[6] https://en.wikipedia.org/wiki/Battle_of_Bladensburg.

[7] A “Civil War” is normally fought over who will control an existing government. The South had no interest in taking over the government of the Union.

[8] https://www.thoughtco.com/lincoln-issues-proclamation-suspending-habeas-corpus-3321581.

[9] http://www.abrahamlincolnonline.org/lincoln/speeches/hodges.htm.

[10] Ratified on December 18, 1865.

[11] https://en.wikipedia.org/wiki/Jury_nullification#State_laws.

[12] http://constitution.org/trials/penn/penn-mead.htm.

[13] https://www.thenewamerican.com/usnews/constitution/item/22588-supreme-court-justice-sotomayor-supports-practice-of-jury-nullification.

[14] http://worldpopulationreview.com/states/maryland-population/.

[15] https://www.foxnews.com/politics/western-marylanders-push-to-secede-from-state.

Guest Essayist: Tony Williams

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In the fall of 1779, John Adams was home in Massachusetts during a respite from his diplomatic responsibilities in Europe. While he was there, Adams drafted the state constitution that built on the constitutions and experiences of other states, using them as a model of success and failure. The resulting Massachusetts Constitution was a balanced constitution.

Royal authority had collapsed in Massachusetts in 1775, and the state was governed by a provincial congress under the 1691 colonial charter. The legislature had drafted a constitution in 1778, but the sovereign people of local townships had rejected it.

The people of Massachusetts concurred with other Americans that written constitutions were perpetual fundamental law made by the representatives of the people at popular conventions called for that purpose. The Massachusetts legislature, however, was an ordinary lawmaking body that was not invested with the authority to create such a constitution.

In early 1779, all free men over 21 were eligible to vote for delegates to a special constitutional convention which began meeting in September. The constitution would need ratification by two-thirds of those same men to become fundamental law. This was an expression of the principle of popular sovereignty, or the will of the self-governing people.

The convention called a drafting committee which then appointed a subcommittee of James Bowdoin, Samuel Adams, and John Adams to write the constitution. Bowdoin and Samuel Adams deferred to John Adams to complete the task. Adams finished his assigned work and submitted it to the convention which made revisions and submitted it to the people for ratification in March 1780. It was adopted in June.

The Massachusetts Constitution of 1780 was comprised of the familiar principles of the American Founding especially those found in the Declaration of Independence. The preamble asserted that the sovereign people formed a social compact with each other to create a republican government whose purpose was to protect the natural rights of the people. They had a right to alter that government for one that best protected their safety and happiness.

The first part of the constitution was a declaration of rights. All men were born free and equal with inalienable rights including life, liberty, and property. The constitution stated that worshipping God was a right of conscience as well as a duty. In order to promote ordered liberty, virtue, morality, and happiness, the constitution simultaneously instituted a limited establishment of the Christian religion. Public money would support the Congregationalist Church, but dissenters could allocate their taxes to their own denominations.

Other principles of the Massachusetts Constitution were popular sovereignty, free and regular elections, and no taxation without consent. Fundamental rights that were protected included the rights of the accused, property rights, and the right to bear arms.

The text of the constitution was rooted upon the principles of separation of power and checks and balances. Those principles found expression in three branches of government: legislative, executive, and judicial. The bicameral legislature was divided into two houses based upon the negative experience of Pennsylvania with only one house. The governor and lieutenant governor ruled with the advice of a nine-member council. The governor could veto laws, but the legislature could override the veto by a two-thirds vote. The third branch was an independent judiciary.

The representatives and senators of the General Court legislature and the governor were elected annually. All free men over 21 could vote if they held a certain amount of property because of the prevailing view that propertyless men were dependent upon others and could not render an independent vote. The state judges served for life and during good behavior. Although the state constitutional convention removed a religious test for office, legislative and executive officials had to take an oath to the Christian religion.

The Massachusetts Constitution was predicated on the belief that, “wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, [was] necessary for the preservation of their rights and liberties.” Therefore, the public would support public schools, literature, seminaries, science, agriculture, arts, and trades. This public encouragement would “countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.”

The Massachusetts Constitution of 1780 was drafted and adopted with the aid of examples and experience in other states. It contained its share of paradoxes such as religious liberty coexisting with religious establishment and broad democratic principles but property requirements for voting and officeholding. The constitution, however, represented the republican principles of the American Revolution and Founding as fundamental law.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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Georgia, my home state, was admitted into the Union on January 2, 1788 and was fourth of the thirteen original states to ratify the U.S. Constitution. Georgia is known as “The Peach State” or “Empire State of the South.”

When James Oglethorpe claimed Georgia (named for King George III) in 1732, he then brought settlers to Savannah in 1733, who would have thought that less than 50 years later, there would be a war for independence from England. This was one of the challenges for Georgians. Many were not that far removed from life in England and many were not sure about this new initiative called the United States of America.

That didn’t stop Lyman Hall, Button Gwinnett and George Walton from signing the Declaration of Independence in 1776. These three men would find their names on three of the 159 counties in Georgia in the fastest growing part of Georgia some 240 years later.

Georgia’s legislature chose six representatives to the Philadelphia Convention of 1787. Of those, George Walton and Nathaniel Pendleton never attended. The four who attended were William Few, Abraham Baldwin, William Pierce, and William Houstoun. William Pierce made notes on the other delegates that have become important historical documents. The two Georgia delegates who signed the finished Constitution on September 17 were Abraham Baldwin and William Few.

Neither of Georgia’s signers was a native Georgian. Abraham Baldwin had come to the state about three years before the Constitutional Convention. A native son of Connecticut with a theology degree from Yale served the Revolutionary cause as a chaplain in the Continental Army. After the war he studied law and moved to Augusta, Georgia, to practice his new profession. He was involved in government as a member of the Georgia legislature. As one of Georgia’s delegates to the convention, Baldwin cast a vote that resulted in a tie on the very controversial matter of representation in the upper house or Senate in the Congress, buying time for a compromise to be worked out. He considered this his most important contribution to the constitution. He later served in the Congress and was instrumental in founding the University of Georgia.

William Few came to Augusta as the revolutionary movement gained momentum in the mid 1770s and quickly became involved with the Patriot cause. He was a member of the committee that wrote the state constitution of 1777.

The ratification of the United States Constitution inspired Georgia to re-write their state constitution in 1789. The latest version of the Georgia Constitution was adopted in 1983 and has been amended hundreds of times through voter resolutions.

Martha Zoller is a policy advisor and has worked for Senator David Perdue and is now working for Governor Brian Kemp. Zoller spent 20 years in media. Martha is a wife, mother, Oma, lifelong Georgian, culture guru and lover of the Constitution. 

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3 – New Jersey – December 18, 1787

Third of the thirteen original states to ratify the U.S. Constitution and join the United States,

“The Garden State” of New Jersey entered the United States December 18, 1787. The New Jersey State Constitution in use today was adopted in 1947 (effective January 1, 1948) and has been amended several times since in minor ways, but its first constitution, written during the crisis of the Revolutionary War, was adopted on July 2, 1776.

Constitutional Convention

New Jersey sent five delegates to the Constitutional Convention in Philadelphia- David Brearley, Jonathan Dayton, William Livingston, William Patterson, and William Houston.  Only the first four signed the Constitution in September 1787, as Houston missed most of the Convention due to illness.   Livingston was the first Governor of New Jersey, holding the position from 1776 until his death in 1790.  His duties in that capacity limited his participation in the Convention, but he was Chair of the Committee of Slave Trade, which developed the compromise on the slavery issue.  Livingston also was an active supporter of New Jersey’s quick ratification of the Constitution.  Brearley’s main contribution appears to be helpful in developing the Electoral  College as part of the Committee of Leftovers, Dayton’s appears to have been minimal, although he participated occasionally in debates, and Patterson introduced the New Jersey Plan, which protected the smaller states against the larger ones. The New Jersey Plan proposal contemplated a unicameral legislature, as the Articles of Confederation contained, with equal voting for each state.  It also would have had the national legislature select the executive.  Although the New Jersey Plan did not prevail, its concept of protecting smaller states was reflected in the Senate provisions.  Patterson would become an Associate Justice of the Supreme Court of the United States in 1793, a position he held until his death in 1806.

The New Jersey Ratifying Convention met in Trenton from December 11 through 20, 1787, and ratified the Constitution on December 18, 38-0, becoming the third state to do so.  Not much appeared to have been debated during the days the New Jersey Ratification Convention met, as the new federal Constitution addressed the major concerns and needs of the state.  In addition, it appears only Federalist delegates were selected to attend the New Jersey Convention.  New Jersey also had a very large debt and heavy levies would have been required, so that too provided motivation for New Jersey to ratify the U.S. Constitution.

New Jersey became the first state to ratify the Bill of Rights when they were submitted, approving eleven of the twelve proposed.  Like Delaware, New Jersey in 1787 was a smaller state and with the protections of smaller states incorporated into the final Constitution, with a  strong national government, New Jersey delegates were satisfied.

The New Jersey Constitution

Immediately before the approval of the Declaration of Independence, the New Jersey delegates met in haste to consider a state constitution to address the emergency and likely imminent invasion by British forces.  Written as a temporary document to address the urgency of the state, it remained in place until 1844.  The constitution allowed all inhabitants worth at least fifty pounds the right to vote, and contained a number of different provisions, including maintenance of the common law and a prohibition on deodand (forfeiture of objects that caused someone’s death).  It also included a free exercise of religion and an establishment clause.

On June 29, 1844, New Jersey adopted its second constitution, which limited suffrage to white males and separated the government into three branches.  The 1844 constitution was one of the first to include a debt ceiling concept in it.  The 1844 constitution was amended in 1875 to conform it to the Fourteenth and Fifteenth Amendments to the United States Constitution.

The current constitution became effective in 1947 and is similar to many state constitutions, although it also contains specific provisions addressing casinos and their regulation.  The current version also includes a provision that terms such as “person” refer to both sexes.

Conclusion

Like Delaware, had New Jersey for some reason not ratified the Constitution, there would still have been a United States.  Little did the four signers of the Constitution from New Jersey in 1787 foresee that their relatively small state would be the 11th most populous in present times.  New Jersey’s delegates were instrumental in protecting the smaller states and although the Virginia Plan ultimately was the winner in the final Constitution, the New Jersey Plan protections were incorporated.  The Garden State, along with Delaware and Georgia, were the only three of the thirteen colonies to vote unanimously at their state conventions for ratification of this new union, the United States of America.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Birthplace of independence and the United States Constitution. “The Keystone State,” Pennsylvania is second of the thirteen original states to ratify the U.S. Constitution and enter the United States. The Pennsylvania State Constitution currently in use was adopted in 1968.

We have in Pennsylvania a form of government founded on principles of individual liberty and self-determination. William Penn’s “Holy Experiment,” as Pennsylvania was called, provided its inhabitants certain inviolable rights through our Charter of Privileges–freedom of religion, liberty of consciousness, the election of our legislative representatives, and protections from abusive government intrusion. Of Pennsylvania, William Penn wrote that it would one day be the “seed of a nation.”

In 1751, on the 50th anniversary of Penn’s Charter of Privileges, the people of Pennsylvania celebrated our freedoms by procuring a new bell for our state house, honoring Penn’s foresight. The inscription on the bell reads: “PROCLAIM LIBERTY THROUGHOUT ALL THE LAND UNTO ALL OF THE INHABITANTS THEREOF.” In 1835, 28 years before the Emancipation Proclamation, courageous abolitionists adopted the bell as a resonant symbol for their demands to end slavery—and they gave our State House Bell the name that we use today, the Liberty Bell.

Such was our form of government in Pennsylvania in 1774, when delegates from the 13 colonies began to gather here. In 1776, they declared these United States free and independent, filled with a people possessed of certain natural rights, among which are life, liberty, and the pursuit of happiness. It is for this reason that we now call our State House, Independence Hall. When America’s founding citizens returned to Philadelphia for our Constitutional Convention, they affirmed that solely in We, the People, there resides the authority to govern. Under this authority, they established a constitutional republic, providing a durable framework through which we govern, respecting individual liberty and relying on broad civic participation and engagement in public affairs. This radical notion of self-determination, clarified and strengthened through many years of debate, discourse, and consideration, is the first ray of light in a sunrise that endures still, shining the power of democracy in over 100 countries around the world today.

In Pennsylvania, the grounds we walk upon are parklands sown from potter’s fields, where the remains of many a brave and fallen revolutionary soldier are often interred below. The streets we walk on are paved with the same bricks traversed by Penn, and later Franklin and Jefferson, Adams and Hamilton, Washington and Lee. The heady courage of those early days—1701, 1774, 1776, and 1787—hangs in the air in Pennsylvania. It permeates our state; it lingers within every home and around every corner.

In the earliest days of our republic, Pennsylvania was called the Keystone State, and this for our role in joining the 13 colonies together. When these extraordinary gatherings of delegates met in Philadelphia, they declared support for a form of government that places individual liberty and self-governance at the center of our great experiment. They committed their lives and fortunes to one another to carry forward the nation through the inevitable and heavy burden of war, aiming toward an ideal of service and cooperation, a defense of liberty, and a furtherance of the power of industry and innovation. Because in Pennsylvania we cast our lots together, we are called a Commonwealth.

Where Pennsylvania established our first city in 1682, so too did America in 1776, for as Robert Morris wrote, Philadelphia is to America as the heart is to the human body. Since that day, the promise of liberty and all it inspires has flowed forth from our metropolis to course through the veins of a vast and growing nation.

Today, the Keystone State continues to bring together many diverse peoples and cultures, from both the whole of America and many corners of the world—Independence Hall and the Liberty Bell last year welcomed visitors from all 50 states and 76 countries. Proud to unite our 13 original colonies in declaring Independence, the Keystone State now joins and strengthens a national archway enlarged to 50 states and 7 territories, beckoning those who yearn to be free, inspiring those who defend the cause of liberty, and providing peace to those who seek to exercise the natural rights of humankind. Pennsylvania is to democracy as fertile earth to a farmer—with care and attention, we reap the plentiful harvest sown from the seeds of life, liberty, and the pursuit of happiness.

This radical form of government endures, for as we stand here in 2019, we are merely seven years away from the Semiquincentennial anniversary of the United States, the 250th year of the people, by the people, and for the people. Many and varied are the dividends of our form of government in our first 250 years—inventing the computer, the Internet, and wireless communication; giving birth to flight, breaking the sound barrier and landing a man on the moon; animating the world with motion pictures, jazz, and hip hop; creating vast opportunity through a global capital market, a start-up economy, and a culture of hard work; and protecting our young with vaccines for cholera, plague, and polio.

But in America, we do best to celebrate our history by making the history of the future, inspiring contributions and service from one another as citizens. We aim together toward that more perfect union, recognizing that much still remains to be accomplished—providing shelter for the unhoused, food for hungry, and care for the sick, defending the rights of the oppressed at home and abroad, offering aid and asylum to those in need, securing the health and well-being of our natural environment with clean air, clean water, and safe communities, teaching all of our children to read, to work, and to vote, and continuing to advance, refine, and improve our own government from town school boards to federal offices.

Our form of government relies upon our willingness to renew our high ideals in each successive generation. We aim toward universal justice, equality, and freedom, fueled by the knowledge that our work remains incomplete. The power of democracy derives from the realization that there remain injustices to combat, rights to secure and defend, and oppression and tyranny to root out. We become America in each generation by progressing toward these ambitions.

Our aspirations as a people can only be realized through the participation of each person. Our successes and our shortcomings are tied together. We rely upon each other—through volunteerism, small and uncelebrated acts of kindness, the nurturing of our children by caring teachers, the selfless bravery of men and women in our military, law enforcement, and firefighters—these common threads of personal commitment all woven together into a banner of duty to this nation and to one another. For whether we are down the street or across the country, we are all neighbors.

Now, as we approach America’s 250th anniversary, we are asked to take stock of where we have been and where we are going. We honor our nation by seeing our past for what it has been—at turns inspiring, but not without flaws, aiming toward justice, but not without a history of slavery and oppression, aspirational and sincere, but not without demagoguery and disillusionment. We likewise honor our nation by seeing our present for what it is—democracies exist in reality, and today’s reality, so it is sometimes said, is one of an America divided. The antipathy of red and blue, young and old, rich and poor: these “divisions,” reinforced through certain beguiling echo chambers of modern technology, are said to impede our civic engagement and acts of mutuality. But another view is that we share a deeply held commitment to defend the rights that make us America—personal liberty, religious freedom, protection from unwarranted intrusion, the agency to pursue one’s own hopes and goals, the ability to be whomever and whatever each of us may wish to be. When we recognize and reject the forces that would conspire against America—incivility and ignorance, intolerance and intimidation—we are then most able to honor our nation by securing for our future the promise it contains. Let us recommit to our founding principles with courage, compassion, and daring. The promise of democracy is the realization that within ordinary people swell extraordinary possibilities.

It is now for us to carry forward our nation and to deliver this more perfect union to our children and grandchildren. The path to this future is clear before us: we can volunteer, serve, and participate, engaging one another sincerely, with compassion and civility, appealing always to the highest of human capabilities. With these principles as our guideposts, we are well equipped to reflect upon the defense of our values in the modern world. Could our founding fathers have possibly anticipated that guns would be turned upon our children in our own schools? Could they have anticipated the ubiquitous web of personal information and connectivity of the internet, and the associated challenges to personal privacy? Could they have anticipated the dislocations of vast populations and the associated crises in human rights? Many are the questions that we face today, in our generation of America, to visit and revisit. The strength of our form of government derives from the conviction that We are the People with the knowledge, patience, and determination to address and solve these problems.

As we do in America from generation to generation, let us come together again—let us return to our Keystone State, Pennsylvania—inspiring our fellow citizens through service and cooperation, strengthening our national fabric by honoring the high ideals on which our nation was founded, and supporting and defending the principles of our American Republic, at home and around the world.

In the words of General Washington, “Let us raise a standard to which the wise and honest shall repair.”

Dr. Andrew Hohns is the Chairman of the Board of the nonprofit USA 250 an organization founded to spark the nation’s imagination leading into and through the United States Semiquincentennial, 2026, our Nation’s 250th birthday.  He was also appointed by Congress in 2016 to the United States Semiquincentennial Commission, the Commission established by Congress to direct the celebration of our Nation’s 250th birthday. Dr. Hohns is Managing Director at Mariner Investment Group and serves as Lead Portfolio Manager for two fund strategies related to infrastructure investment. He holds a BS in Economics from the Wharton School at the University of Pennsylvania, a Masters in Liberal Arts from the School of Arts and Sciences at the University of Pennsylvania, and a PhD in Applied Economics and Managerial Sciences from the Wharton School at the University of Pennsylvania. He also serves as a board member of the United States Fund for UNICEF and has served from time to time as an Adjunct Assistant Professor at New York University’s Stern School of Business.

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1 – Delaware – December 7, 1787

As the Constitutional Convention came to a close in Philadelphia, America’s founding representatives signed the United States Constitution on September 17, 1787. Then, the first of the thirteen original states to ratify and approve this document, this new U.S. Constitution, which replaced the Articles of Confederation, was Delaware, signing on December 7, 1787. This signing admitted  Delaware, known as “The First State,” to the United States on December 7, 1787, subject to at least nine other colonies joining in agreeing to the U.S. Constitution. The current Delaware State Constitution in use, which is the fourth constitution in Delaware,  was adopted in 1897, but its first was adopted on September 20, 1776.  The first constitution referred to the state as “The Delaware State.”

Constitutional Convention

Delaware  sent five delegates to the Constitutional Convention in Philadelphia- Richard Bassett, Gunning Bedford, Jr., Jacob Broom, John Dickinson, and George Read.  Surprisingly, all five signed the Constitution in September 1787.  (Evidence is that Dickinson was not feeling well, and left the convention a day early, asking Read to sign his name to the document.)  Of the twelve colonies who signed the Constitution, only Pennsylvania had more signers than Delaware (eight).

The delegates were sent to Philadelphia with instructions that they were okay to offer amendments to the Articles of Confederation, but only “to render the Federal Constitution adequate to the Exigencies of the Union.”  These five delegates, who had attended the Annapolis Convention, were given instructions they could not change the one state, one vote framework for the Articles.

Dickinson has been credited with proposing a solution to address a proposal that the two houses of the Congress be represented according to population, offering that the Senate provide for every state to be equal and the state legislatures to pick the Senators.

Delaware was a very small state in area and in population.  They had no major economic center or product, and yet despite small size, their coast line was large.  The Delaware Ratifying Convention met on December 3, 1787 and, shortly after meeting, became the first state to ratify the Constitution, by a unanimous vote, 30-0, on December 7, 1787.  The only other states to vote unanimously to ratify the Constitution were New Jersey and Georgia.  Delaware beat Pennsylvania by five days in ratification.

Reports of the Delaware Ratifying Convention have been lost.  But by accounts, other than a petition to reject delegates who had been selected by Sussex, not much debate ensued.  Citizens of Delaware desired a stronger national government than the Articles provided. As part of the approvals, Delaware also recommended cession of land for the new Federal Capital to be located within its boundaries.  That last offer of course did not happen.

Of the five delegates who attended the Constitutional Convention in Philadelphia, Dickinson was probably the most prominent.  Known as “Penman of the Revolution,” he wrote the Liberty Song in 1768.  In that same year and the next, he also wrote a series of papers known as Letters from a Farmer in Pennsylvania, attacking British taxing policies.

In 1788, after Delaware ratified the Constitution, Dickinson wrote nine letters as Fabius, answering various Antifederalist arguments, in an effort to reinvigorate ratification progress in other states.

The Delaware Constitution

Immediately following the Declaration of Independence, the Delaware General Assembly met and approved the calling of a state constitutional convention.  The convention met in August 1776, naming Read President.  On September 20, 1776, the convention approved the new constitution and it became effective.  Delaware became the first state to have a convention write a constitution after the Declaration of Independence.  The constitution had a bicameral legislature, an executive with broad authority after consulting with the Privy Council, and a judicial branch that the Executive and General Assembly selected. The constitution prohibited the entry of anyone from Africa or other places for the purpose of holding the individuals in slavery.

The 1776 constitution was replaced by the Delaware Constitution of 1792, which remained in effect until 1831, when a convention approved a third state constitution. The current constitution, Delaware’s fourth, was adopted in 1897 and remains in effect.

Conclusion

Unlike some larger, more influential states, had Delaware for some reason not ratified the Constitution, there would still have been a United States.  However, its delegates contributed to the Constitutional Convention in Philadelphia, including the proposal that eventually addressed small versus large state representation, and through its leadership in being the first state to ratify the Constitution and by a unanimous vote.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

“Americans are the heirs of a constitutional tradition that was mature by the time of the national Constitution,” writes Donald Lutz in The Origins of American Constitutionalism.”[1] Beginning with “proto-constitutions” such as the Mayflower Compact, the Pilgrim Code of Law and the Fundamental Orders of Connecticut, Americans had spent more than 150 years learning and perfecting the art of constitution-writing — and the thirteen state constitutions which were in effect when the national constitution was ratified in 1788 were an important step in that process. “It would not be putting the matter too strongly to say that the United States Constitution, as a complete foundation document, includes the state constitutions as well.”[2] Tragically, Americans, whose knowledge of their national constitution is dismal enough,[3] show even less interest in those of their own states. This is doubly tragic when you consider that American lives are arguably more affected by the laws of their state than by federal law.

As to what it would mean for the states to be run by their citizens rather than royal rule, some colonies had not known “royal rule” for quite some time.  The charters of 1662 (Connecticut) and 1663 (Rhode Island) had given each of these colonies permission to elect their own governors rather than live under governors appointed by the king, as was the rule elsewhere. In fact it was the “self-rule” aspects of these charters that persuaded the two states to not construct new constitutions after July 4th 1776, finding instead that they could continue operating under the structure of these charters as independent states. Even in those colonies operating under royal appointees, those governors rarely interfered in the affairs of their elected legislatures, making Parliament’s “Intolerable Acts” of 1774[4] even more intolerable.

Every government, every organization for that matter, has a constitution, whether one has been purposely created for it or not; this is simply a fact of voluntary association. Until a written constitution is drafted to guide it, any organization will, over time, adopt formal or informal rules to guide the organization and its affairs. These rules comprise a constitution, often an unwritten one.

Black’s Law Dictionary[5] defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.”

America had a constitution in 1776, or at least so thought Jefferson when he complained in the Declaration: “[The King] has combined with [Parliament] to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.” (Emphasis added).  “Our constitution,” not “our constitutions” (which could have pointed to the several state constitutions by then in force).  While the colonies certainly lacked a common, written constitution, the last 150+ years of successful collective self-government had resulted in the informal incorporation of many features of government which combined to comprise an unwritten constitution – which Jefferson claimed was being violated.

“Reading properly and carefully, one can glean from a constitution the balance of political forces, a structure for preserving or enhancing that balance, a statement of the way people should treat each other, and the values that for the basis for the people’s working relationship, as well as the serious, remaining problems in the political order.”[6]

In July 1776, when the thirteen united colonies claimed their independence and became “free and independent states,” they had a long relationship with self-governance –Virginia, the oldest colony, since 1619; and the autonomy they enjoyed would not be so easily given up to a Parliament which, in 1766, had claimed for itself the right to legislate for the colonies “in all matters whatsoever.”[7]

By 1776, each colony was operating under a charter from the King of England, some royal, some proprietary, which defined its leadership/governing structure and the rights to be enjoyed by the colony’s inhabitants. Virginia’s 1606 charter, for instance created a thirteen-member governing council in Virginia shadowed by another thirteen-member council back in England. The colony’s citizens were to enjoy “all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande”[8]

On May 10th, 1776, the Second Continental Congress issued a resolution encouraging any of the colonies who had not already done so 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.” [9] Sent out on May 15th after a prologue had been added, the resolution arrived too late for several colonies. The previous January, New Hampshire had unilaterally enacted a new constitution, the first to do so.  South Carolina had followed suit on April 12th.  On May 4th, 1776, the legislature of Rhode Island, sensing the mood of the country, passed a bill that replaced an act of allegiance to the king with an oath of allegiance to the state – effectively declaring their independence. As previously noted, Connecticut’s “Fundamental Orders,” adopted in 1638 while the state was still an English colony, included no overt allegiance to England. It would not be until 1818 that Connecticut would get around to drafting a new constitution. Virginia had already issued its call for a constitutional convention, to assemble in Williamsburg on May 5th. Their new constitution was enacted 5 days before Jefferson’s Declaration was approved in Philadelphia.

Responding to Congress’ resolution, the other colonies began to take action:  Maryland, Delaware, Pennsylvania, North Carolina, and New Jersey all enacted new Constitutions later that year.

Georgia and New York put new constitutions in place the following year, Massachusetts in 1780.

These first state constitutions “were the most detailed and legally binding collective expression of the revolutionaries’ political ideas in 1776.”[10]  Often overshadowed by the Constitution of 1787, the state constitutions are a rich treasure trove of republican and democratic principles.

Why were the state constitutions still needed after the U.S. Constitution went into effect twelve years later? Simply because the formation of a new national government did not eclipse the state governments, in fact it relied upon the states to continue to provide the vast majority of governmental services within each state, which the Tenth Amendment to the U.S. Constitution obliquely reminds us: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[11]

Eleven of the original thirteen state constitutions contained specific protections for individual rights. While a state document cannot deny a right secured in the national document, in some cases the states secure rights for their citizens which are not mentioned or are elucidated differently in the national document.  For instance, Pennsylvania and a few other states make it clear that “the people have a right to bear arms for the defence of themselves and the state,” significantly clearer than the confusing wording of the U.S. Second Amendment. (Emphasis added). The North Carolina constitution secures a right for its citizens to “instruct their representatives,” and requires that jury decisions be unanimous (as do several other state constitutions). Maryland secures a right for its citizens of resistance, against arbitrary power and oppression.” Delaware’s first constitution (enacted September 10,1776) outlawed slavery in the state.

In many cases, these first state constitutions take the opportunity to explain principles of government which the Framers of 1787 apparently thought were so “self-evident” as to not require mentioning. For example, the Virginia Declaration makes the following statements (here paraphrased) not found in the U.S. Constitution:

  • That all men are by nature equally free and independent, and have inherent rights that they cannot, by any compact, deprive or divest their posterity.
  • That all power is vested in, and consequently derived from, the people.
  • That magistrates should be at all times amenable to the people.
  • That elected officials should be returned to the body of the people to feel, once again, their burdens.
  • That government is instituted for the common benefit, protection, and security of the people, nation or community.
  • That a majority of the community has a right to reform, alter or abolish their government.
  • That no individual or group is entitled to exclusive or separate benefits or privileges from the community.
  • That citizens should evidence a permanent common interest in, and attachment to, their community before being allowed to vote.[12]

Today, a Massachusetts legal organization cautions: “Some of the protections bestowed by the [Massachusetts ] Declaration of Rights duplicate those enumerated in the Bill of Rights, while others confer greater protection of individual liberties. Too few Massachusetts criminal defense attorneys utilize the additional protections afforded to Massachusetts citizens under the Declaration of Rights in defending their clients. A criminal defense lawyer who fails to specifically cite the Massachusetts Declaration of Rights in objections at trial or issues raised on an appeal may needlessly consign his client to a prison cell.”[13]

Another advantage of the state constitutions lies in their generally being easier to amend than the national constitution. As a consequence, the state constitutions are amended far more frequently.  The entire constitution of a state can often be replaced more easily (Georgia and Louisiana are each currently operating under their ninth state constitution since 1776).

For those interested in further study of the 50 state constitutions, the NBER/Maryland State Constitutions Project provides searchable access to almost 150 versions of these documents. The best comparative treatment of the state constitutions, including to what extent they incorporated the leading principles of republican government, is found in Willi Paul Adams’ masterpiece: The First American Constitutions; Republican Ideology and the Making for the State Constitutions in the Revolutionary Era.

State constitutions perform an important role in the governance of America’s 320 Million citizens and play a critical role in making federalism work.  We couldn’t get by without them.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Donald Lutz, The Origins of American Constitutionalism, Louisiana State University Press, Baton Rouge, 1988, p.5.

[2] Ibid.

[3] https://www.washingtonpost.com/news/monkey-cage/wp/2017/06/27/too-many-americans-know-too-little-about-the-constitution-heres-how-you-can-fix-that/?utm_term=.8715e5eb6890

[4] https://en.wikipedia.org/wiki/Intolerable_Acts

[5] Black’s Law Dictionary, 4th Edition, accessed at:

[6] Lutz, p. 3

[7] The American Colonies Act 1766, aka The Declaratory Act, explained at https://en.wikipedia.org/wiki/Declaratory_Act

[8] 1686 Virginia Charter

[9] http://startingpointsjournal.com/may-resolution-declaration-of-independence/

[10] Willi Paul Adams, The First American Constitutions; Republican Ideology and the Making for he State Constitutions in the Revolutionary Era, Rowman & Littlefield, Pub, New York, 2001, Preface to the Expanded Edition.

[11] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

[12] https://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights

[13] https://www.relentlessdefense.com/what-should-i-do/massachusetts-declaration-of-rights/

 

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

The first question poses an issue of federalism and the rule of law.  The United States Constitution was drafted to establish a particular form of government at the national level.  Its provisions were not intended mainly to address states as states but individuals who lived in those states.  Federalism as an institutional form allocated certain powers to the national government and more or less left any remaining powers to the states.  If the citizens of any given state were to enjoy the benefits and protections of limited government, some sort of constitutional rules would be required.  Otherwise the state governments would have unlimited authority.  By definition a constitution is an enforceable set of rules, alterable by the people and unalterable by the government.  A state constitution provides such a framework.

This also is one reason why state constitutions are so long, compared to the Federal Constitution.  The state governments possess reserved powers, that is, all power not granted to the national government.  Since this is a very large potential body of power, it is necessary to address any particular power that might be invoked by the state.  In turn, that requires a much more detailed set of provisions, since whatever is not addressed is by definition granted to the state government.

The second question is one of self-governance.  John Locke had argued that all legitimate government was established by a social contract founded on the “consent of the people.”[1]  For Locke this was the only effective way to limit the power of government to its ordained functions—the protection and promotion of the natural rights of life, liberty and property.  Royal rule implied a centralized and removed form of government in which the citizens had only those rights that government chose to grant to them.  In the Colonial period, constitutionalism did not exist in effect, though many spoke of an “Ancient Constitution” that, among other things guaranteed “the rights of Englishmen.”  This was however an unenforceable hodgepodge of laws and customs, not a coherent, written document.

As a result, governance from England was exercised through the king and his colonial governors.  If the states were governed by their citizens they would be able to choose their own type of institutional structure and likely (as they did) directly participate in choosing many of the public officials.  The government would in a real sense be closer to the people.  Local conditions would be better known, as opposed to attempts to make policy from the mother country.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   See Second Treatise of Government (1690).

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M. Stanton Evans rightly complained against what he termed “the Liberal History Lesson”, the lie that Americans got our freedom by turning from Christianity.[1] That tale is supported by other fictitious claims, such as that the statesmen who gave us our independence, the U.S. Constitution, and the Bill of  Rights were Deists, rationalists, and skeptics who wanted to separate Christianity from politics and establish a “religiously neutral” or secularist political order over these United States.  None of that fits the evidence—when all the evidence is considered.  The pertinent evidence must be summarized,[2] but the evidence from our first states’ constitutions, declarations and/or bills of rights is sufficient to make the case.[3]

Christianity, overwhelmingly Protestant Christianity, was the religious commitment of the people of every state.[4]  Early American education—at all levels including college, in all colonies and areas of the colonies/states—was overwhelmingly Christian: before, during, and long after the “Revolution” and the “Founding Era.”[5]  Christianity was fundamental and dominant in early American law, legal thought, and legal education during and after this time.[6]  Christianity was much more influential on early American political thought than we have been told.[7]  Moreover, the framers and ratifiers of the Constitution created by representatives of the several states and ratified by the respective state legislatures or specially elected state ratification conventions were not Deists, skeptics, rationalists, or secularizers, but were overwhelmingly Christians.[8]

Two states retained their manifestly Christian colonial charters as their state constitutions: Connecticut until 1818, and Rhode Island until 1842.  New Hampshire and South Carolina created their constitutions in 1776, before the colonies’ Declaration of Independence, as temporary expedients in case no accommodation could be reached with England.  Virginia and New Jersey crafted their constitutions before the Declaration too, but as permanent governmental devices.  Pennsylvania, Maryland, Delaware, North Carolina, Georgia and New York framed their constitutions, declarations, and bills of rights after the Declaration but completed the process by early 1777.[9]  The Massachusetts Constitution of 1780 was the first to be created by a constitutional convention and approved by popular vote.  Thus, says McClellan, it was “the first written constitution resting on a thoroughly republican base, and in this respect set the standard for the Federal and State constitutions that were to follow.”[10]  Though they had important similarities, the states had different histories, religious and ethnic compositions (in religion, overwhelmingly among Christian denominations), social orders, economic interests, and internal politics.  They were thirteen peoples, not one.[11]

The new state constitutions, declarations and/or bills of rights created by the states were clearly Christian, though not flawless, and the people of each state learned from the fundamental laws created by the representatives of the peoples of other states, as well as from their own.  These documents were adaptations of the inherited forms, structures, and principles of the respective colonies’ governments and laws.[12]

Our states’ first fundamental laws featured Christian rhetoric, statements of God’s—and no other god’s—attributes and authority, including His providential, covenantal governance of history, and a Christian view of the Source and rightful content of law.

Concerning civil government, they set forth a covenantal, republican view that civil government must, under God, be based upon the consent of the governed.  Concerning man, the rulers and the ruled, they affirmed that he is created with certain unalienable God-given rights, but rejected notions that man is either “neutral” or naturally good.  They affirmed the unpleasant reality of Original Sin and designed their governments to protect liberty and justice against it.  Because they knew the fallen nature of man, they designed limited republics with written constitutions and bills of rights.  Those republics had both democratic and aristocratic features, designed to protect the majority and the minority against injustices.  They were not egalitarian, and sought to protect property by means of graded property qualifications for government offices.  To protect and promote godly laws and liberty, they had Christian qualifications for public office; in respect for Christians who believe that God forbids men to swear an “oath,” they let them make an “affirmation” instead.  To promote the benefits of education in all mental, practical, and geographical areas of a state, they encouraged the towns, precincts, and voluntary associations to promote Christian instruction.

Due to the states’ colonial heritage, some of them (Virginia, North Carolina, New York) had the Anglican, or Episcopal Church as the legally established church of the state.  In Connecticut and Massachusetts the Congregational Church was the de facto established church.  In South Carolina, New Jersey, and New Hampshire, Protestantism was the quasi-established not church but religion.[13]  In Delaware, Pennsylvania, Maryland, Georgia, and Rhode Island Christianity was quasi-established.[14]  When the states finally did away with their particular de jure or de facto established or quasi-established church, they were not motivated by rationalism, “neutrality” among all religions, or secularism, but by Christianity, Christian leadership, and a desire for religious liberty within the boundaries of Christian, or Biblical ethics (later including Jews).

Because they knew the fallen nature of man, they created systems of separation of powers with accompanying checks and balances among institutions to protect liberty and justice.  For the same reason, they stated the right of the people to resist tyranny.  And to protect their people against simplistic philosophies of freedom, they reminded them of the biblical connection between Christianity, virtue, and liberty: faith in God, obedience to His commandments, and God’s blessings upon the people of the state.  Such historical realities the “Liberal History Lesson” omits.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] M. Stanton Evans, The Theme Is Freedom; Religion, Politics, and the American Tradition (Washington, D.C.: Regnery Publishing, Inc., 1994), 3-21.

[2] Benjamin F. Morris, The Christian Life and Character of the Civil Institutions of the United States (Powder Springs, Georgia: American Vision, [1864] 2007), provides more than 800 pages of pertinent evidence about Christianity and the states in general.

[3] Morris, 267-292, deals with the state constitutions framed during the “Revolution.”

[4] For extensive evidence on this, see Morris, The Christian Life and Character of the Civil Institutions of the United States, 55-138.

[5] Archie Preston Jones, “Christianity in the Constitution: The Intended Meaning of the Religion Clauses of the First Amendment,” (Ph.D. dissertation, University of Dallas, 1991), 79-144.

[6] Jones, “Christianity in the Constitution,” 145-230.  See also John Eidsmoe, Historical and Theological Foundations of Law, 3 volumes (Powder Springs, Georgia: American Vision Press, Tolle Lege Press, 2011), especially Vol. I, pages 243-468, Vol. II, pages 582-620, 687-960, and all of Volume III.

[7] Since political sermons were often part of public affairs in early America before, during and after the War for Independence, see Ellis Sandoz, ed., Political Sermons of the American Founding Era, 1730-1805 (Indianapolis: Liberty Press, 1991).  Further evidence of the influence of Christian political thought on early America see Charles S. Hyneman and Donald S. Lutz, eds., American Political Writing during the Founding Era, 1760-1805 (Indianapolis: Liberty Press, 1983).

[8] M.E. Bradford, A Worthy Company; Brief Lives of the United States Constitution (Marlborough, New Hampshire: Plymouth Rock Foundation, 1982), and M.E. Bradford, Religion and the Framers: The Biographical Evidence (Marlborough, New Hampshire: Plymouth Rock Foundation, 1991).

[9] James McClellan, Liberty, Order and Justice; An Inrtoduction to the Constitutional Principles of American Government (Washington, D.C.: Center for Judicial Studies, 1989), 84-86.

[10]McClellan, 87.

[11] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge [Joseph] Story’s Commentaries on the Constitution of the United States (New York: Van Evrie, Horton & Co., 1868), Reprinted by St. Thomas Press, Houston, Texas, 1977, provides a 242-page, point-by-point refutation of Story’s unhappily influential work.

[12] On the colonial charters and states’ constitutions see Conrad Henry Moehlman, The American Constitutions and Religion; Religious References in the Charters of the Thirteen Colonies and the Constitutions of the Forty-eight States; A Sourcebook on Church and State in the United States (Berne, Indiana, 1938); Benjamin P. Poore, ed., Federal and State Constitutions, Colonial Charters and Other Organic Laws of the United States, 2 volumes (Washington, D.C.: Government Printing Office, [1877] 1888); and William J. Federer, The Original 13; A Documentary History of Religion in America’s first Thirteen States (St. Louis, Missouri: Amerisearch, Inc., 2014).

[13] That is, Protestants’ religious freedom was protected.

[14] That is, Christians’ religious freedom was protected.

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When John Jay, in Federalist No. 2, said he had often noted with pleasure that “Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence,” he was half right.  He recognized that the peoples of the states that declared their independence in 1776 were overwhelmingly Christians and Protestants.  Yet he was certainly wrong about them being “one united people,” and about them having a purpose to establish “general liberty and independence,” for as the colonies’ Declaration makes clear, they fought to make each colony, under God, a free and independent state.

The Americans of those colonies had an overwhelmingly Christian background extending through English and Western history to the Old and New Testaments.[1]  Their theological background was dominantly Calvinistic, but with diverse expressions.  Of the 3,000,000 Americans in 1776 about

900,000 were of Scotch or Scotch-Irish origin, 600,000 were Puritan English, and 400,000 were German or Dutch Reformed.  In addition to this the Episcopalians had a Calvinistic confession in their Thirty-nine Articles; and many French Hugenots also came to this Western world.  Thus…about two-thirds of the colonial population had been trained in the school of Calvin.[2]

These colonies were the most thoroughly Protestant, Reformed, and Puritan commonwealths in the world.  Puritanism provided the moral and religious background of 75 percent of the people who declared their states’ independence in 1776.[3]  Ahlstrom says that “If one were to compute such a percentage on the basis of all the German, Swiss, French, Dutch, and Scottish people whose forebears bore the ‘stamp of Geneva’ in some broader sense, 85 or 90 percent would not be an extravagant estimate.”[4]

American culture when our early state constitutions were framed was clearly Protestant, with local variations in each state according to its ethnic, denominational and theological heritages.  Education, law, legal thought and legal education were overwhelmingly Protestant—before, during, and long after our first states framed their fundamental laws.[5]  These were deeply Christian, with theological presuppositions, philosophies, histories, and precedents reaching back through British and Western history and legal thought beyond the Reformation and the medieval period to the Bible.[6]

Although the peoples of the English colonies were basically one in their commitment to Christianity, the Christian basis of their ethical, political, and legal thought, and their desire to be free of England’s rule, they were not one but many in many other ways.  They were many in their theologies, ecclesiastical doctrines, and denominational affiliations.  Theologically, they were Calvinists and Arminians, Protestants and Roman Catholics.  Denominationally, they were Presbyterians, Congregationalists, Reformed, Episcopalians, Baptists, Methodists, Evangelicals, independents, Lutherans, German Reformed, Dutch Reformed, Hugenots, Quakers, Mennonites.  Most were from England, but some were from Scotland, Ireland, Northern Ireland (Scots Irish), France (Hugenots), the Netherlands (Dutch Reformed), or Germany (Reformed, Lutheran, Mennonite).  Though most were from England, they spoke different dialects.  As Phillips noted in The Cousins’ Wars, those who settled the various colonies were from different parts of England, had fought against each other in the English Civil War (1640s), and would, to some extent, fight against each other again in the colonies’ War for Independence, and later in our misnamed “Civil War”.[7]  As was obvious to the colonists, the New England colonies were heirs of the Puritans, quite different from colonists of the more diverse Middle Colonies, and even more different from the more traditional Anglican, Presbyterian and Baptist colonies of the South.

Nor were they one in their economic interests and endeavors.  Farming was dominant in every region.  But New England’s economy focused on mercantile activity, manufacturing, fishing, and whaling.  The Middle Colonies’ focus was on mercantile activity.  The South was dominated by agriculture and an agrarian philosophy.

The cultural difference between the people of the North, particularly New England, and of the South was deep.  Page characterized it as producing “(t)wo essentially diverse civilizations”,[8]  and eventually (1861-1865) our most destructive war.  The differences were religious, economic, cultural, and political.  Religiously, the South was more Anglican or low-church Episcopalian, Presbyterian, and traditional; the North, especially New England, was Puritan (Calvinistic Congregationalist).  Culturally, the South was individualistic, traditional, and conservative; the North was more community-centered, authority-centered, and church-centered.  The tyranny of the British king-in-Parliament, not cultural or political convergence, brought the two peoples together for their common defense.[9]

The colonies had different modes of government: in New England the township; in the South the county; in the Middle Colonies a mixture of the two.  The New England township was more overtly democratic than the Southern colonies’ governments, but had oligarchic aspects and exercised more power over the individual than Southerners would have tolerated.  Southern government was formally more aristocratic, yet substantively much more influenced by the “plain folk” than most historians admit.

The colonies had diverse histories.  Each section had been settled by somewhat different groups of people, from different places in England and Western Europe.  Though slavery existed in almost all the colonies, it was more successful in the South, so the Southern colonies had larger slave populations, and more diversity in that respect than the other two sections.  Peoples of the New England states had more in common with those of the Middle states than they did with the peoples of the Southern states. Moreover, each colony had its own unique history and regional and local differences within its borders.

The relations of the colonies to each other clearly indicate that they were not one people.  They were all under the authority of the British Empire, but each was connected to Britain by its own charter.  They were not bound only by laws of a common sovereign to them as a whole, for each had its own government.  They owed no reciprocal obligations to each other and had no common political interests or duties.[10]  As Upshur explains:

The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws.  The colonies had no common legislature, no common treasury, no common military power, no common judicatory….There was no prescribed form by which the colonies could act together, for any purpose whatever; they were not known as “one people” in any one function of government….even in the action of the parent country, in regard to them, they were recognized as separate and distinct.  They were established at different times, and each under an authority from the Crown, which applied to itself alone.  They were not even alike in their organization.  Some were provincial, some proprietary, and some charter governments.  Each derived its form of government from the particular instrument establishing it…, without any connection with, or relation to, any other.[11]

The nature and extent of the powers exercised by the Continental Congress did not make the people of all the colonies a “de facto nation” or “one people.”  That Congress was not a true civil government: it could only consult, deliberate, pass resolutions, and advise, not legislate.[12]

The Declaration of Independence did not “bring forth a new nation”; it brought forth thirteen new independent nations.  The Congress that produced that Declaration then acted only upon the authority of the consent and acquiescence of the several states—not upon any authority of a new nation consisting of all the people of the states as a collective entity.  It was then a de facto government that, in its ordinary business, relied on the belief that its actions would be approved and confirmed by their states.[13]

In no Continental Congress did the states’ representatives act as representatives of one people.  No wonder, for the standard estimate of the loyalties of the colonists is: one-third for independence, one-third against it, and one-third undecided.  Every recommendation to send representatives to a general Congress was addressed to the colonies as such, not to “the people.”  Each colony acted for itself in the choice of those deputies; none acted in the name of the whole “American people.”  The colonies after their Declaration acted as equals, not as areas having a certain percentage of the whole people of a “new nation.”[14]  However a state’s representatives were chosen, they were chosen in each particular state for itself alone, certainly not for any “nation.”

The Continental Congress exercised de facto a power of legislation in many cases, but never had that authority de jure by any grant of power from the colonies or from “the people” of “the nation.”  Congress’s acts only became valid by the states’ subsequent confirmation.  During the course of the war the people

“…never lost sight of the fact that they were citizens of separate colonies, and never, even implicitly, surrendered that character, or acknowledged a different allegiance.  In all the acts of Congress, reference was had to the colonies, and never to the people.  [Its] measures were adopted by the votes of the colonies as such, and not by the rule of mere numerical majority, which prevails in every legislative assembly of an entire nation.[15]

Acts of the “revolutionary government” were consistent with the independence and sovereignty of the states….  The Continental Congress did not have “exclusive” power to wage war; the independent states used their own sovereign authority to wage their war for independence.[16]

The people of the colonies were not one people before they joined to declare the independence of their states; uniting to form the Declaration did not make them “one people.”[17]  The Congress that declared their independence was appointed by each colony separately and distinctly.  They deliberated and voted as separate colonies—with only one vote per colony—not in proportion to each colony’s population, as they would have if their collective vote were intended to represent the will of the “national majority.”  They did not declare the independence of a new union, but of their thirteen respective states.[18]  The delegates signed the Declaration not as random individual representatives of the whole people of the states, but in groups according to their respective states.  Foreign countries, in treaties, recognized the distinct sovereignty of the states.[19]    

The states’ framing and ratification of the Articles of Confederation did not presuppose or create one people.  The Articles’ wording explicitly refutes such an idea: plainly announcing that “each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”[20]

Clearly, the states’ framing and ratification of the Constitution did not presuppose one people.  Providence gave this geographically united country to the divided peoples of thirteen separate states.  Their different colonial histories—in 1776, seven well more than a century, four more than a century, one, more than ninety years, and one, four decades—gave the people of each state a separate identity.

The Constitution did not create one people.  It was framed by representatives of the states, whose legislatures chose the delegates they sent to what turned out to be the Constitutional Convention: not by “the people” of the United States as a whole.  In Philadelphia each state had only one vote.  The states were not allotted votes on the basis of population.  They were represented as equals because they were equally free, independent states.  The Constitution was ratified by elected representatives of each individual state—the state’s legislature or specially elected ratification convention—not by a popular vote of the people of the state, much less by a national plebiscite.

Each state that ratified the Constitution acted on the basis of its own debates and its own representatives’ decision.  In doing so, each state’s representatives determined that the new Constitution and its federal government would not be a threat to its own particular Christian constitution, declaration or bill of rights, governmental system and laws.

The Christian theory of resistance to tyranny that the colonies followed in resisting the king-in-Parliament continued long after the framing and ratification of the Constitution of the United States (and its Bill of Rights).  At least six states—New Hampshire, Maryland, New Jersey, Pennsylvania, Virginia, and Massachusetts—stated this right explicitly in their fundamental laws, and thereby implied the right of the people to use all the legitimate means of resistance endorsed by that tradition.  Article IV of Maryland‘s Declaration of Rights (1776) phrased it pointedly: “The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”  Where this doctrine was not stated, it was implicit in the constitutions and declarations of all of the states—which owed their existence to the exercise of precisely such a conviction.

At least three states—Virginia, New York, and Rhode Island—made it plain in their ratification documents that to defend their people’s inherited rights and liberty against central government injustice or tyranny they had the right to secede from the Union established by the Constitution, to take back the powers their people had delegated to the central government whenever it should become “necessary to their happiness.”  Some other states’ ratification documents made it clear that each state retains all powers it had not explicitly delegated to the central government, and that these powers remain with each state—as the Tenth Amendment, voicing a common concern of the people of each state, later made explicit.[21]  Unquestionably, in God’s providence, the peoples of the respective states intended to remain so.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] Russell Kirk, The Roots of American Order (LaSalle, Illinois: Open Court, 1974), 11-392.

[2] Loraine Boettner, The Reformed Doctrine of Predestination (Philadelphia: Presbyterian and Reformed Publishing Co., [1932] 1972), 382-383.

[3] Sydney E. Ahlstrom, A Religious History of the American People (Garden City, N.Y.: Doubleday and Co., Image Books, 1975), vol. 1, 169.

[4] Ahlstrom, 169.

[5] Archie P. Jones, “Christianity in the Constitution: The intended meaning of the religion clauses of the First Amendment ” (Ph.D. dissertation, University of Dallas, 1991), 79-144.

[6] Russsell Kirk, The Roots of American Order; Harold J. Berman, Law and Revolution; The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); John Eidsmoe, Historical and Theological Foundation of Law, 3 vols., (Powder Springs, Georgia: American Vision Press, Tolle Lege Press, 2012); and Jones, “Christianity in the Constitution,” 145-230.

[7] Phillips has in mind the Puritans who settled New England and the Anglicans who settled the South.  Our War Between the States was not a “civil war” because it was not fought for control of the national government but over the right of a state to secede from the union established by the Constitution.

[8] Thomas Nelson Page, The Old South; Essays Social and Political (Chautauqua, New York: The Chautauqua Press, 1919), 259.

[9] Page, 260.

[10] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge Story’s Commentaries on the Constitution of the United States; With an Introduction and Copious Critical and Explanatory Notes by C. Chauncey Burr (New York: Van Evrie, Horton & Co., 1868).  [Reprinted by St. Thomas Press, Houston, Texas, 1977], 35.  Upshur’s 242-page point-by-point refutation of Joseph Story’s claim that the Constitution was intended to be based on the national majority will destroys the arguments of multitudes of Fourth of July orations, books, and lectures.  It should be required study for any analysis of the Constitution.

[11] Upshur, 36-37.

[12] Upshur, 44-50.

[13] Upshur, 57.

[14] Upshur, 58.  The states’ argument in their Declaration of Independence refutes the concept of a binding perpetual union, for the laws of nature and of nature’s God that the Declaration invokes as the standard by which one people is justified in terminating its relationship with another are prior in authority to all unions of peoples.

[15] Upshur, 61.

[16] Upshur, 64, 65.

[17] Upshur, 77, 78.

[18] Upshur, 79-81.

[19] Upshur, 90.

[20] Upshur, 94.  This is an obvious forerunner of, and is better worded than the Tenth Amendment.

[21] Archie P. Jones, The Gateway to Liberty: The Constitutional Power of the Tenth Amendment (Powder Springs, Georgia: American Vision Press, 2010), 47-53.

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Meaning of, and how early state constitutions allowed religious establishments regardless of the First Amendment

The first states, as we know, were originally colonies of Great Britain.  Even before that, some were not founded as British colonies, but independent endeavors.  Only later, after the “period of salutary neglect,” did they come under direct governance of the Crown.  From the beginning then, the American colonies, though they did have their own charters and compacts (early constitutions), also could and did have established religions—though many were also tolerant of other religious sects.

Several things must be noted regarding the early colonial and state constitutions in relation to the United States Constitution.  First the colonial and later state constitutions did allow for a single established church.  Some of these simply followed the Anglican Church model and others adopted a different church model.  But their respective constitutions did not pose any legal barriers to this.  Second, the United States Constitution in the First Amendment explicitly stated that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”  In the early years of the Republic that clause was applied only to the national government, leaving the states free to establish their own official churches.  Many did so.  But even those that did, tended to allow for different sects of Christianity—and even different non-Christian religions.  Massachusetts was the last state to abolish its established Christianity in 1833, before the First Amendment was applied by the United States Supreme Court to the states as well as the national government.

Throughout the “establishment period” (until 1833) the states allowed dissenting churches even though they mandated official churches supported by tax money.  It was not until 1947 in the Everson v. Board of Education, that the Supreme Court began to apply the Establishment Clause to the states.  At that point any established churches would be unconstitutional in the states.  Nevertheless, freedom of religion—toleration in effect—was already the custom of the states, and all had by then abolished established churches.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

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Disestablishment in the remaining states did not depart from the substance or results of “disestablishment” in the previous states.

The South Carolina Constitution of 1778 was the most explicitly Christian and Protestant of our first states’ fundamental laws.  Its “religious” provisions were more unambiguous, detailed and lengthy than those of any other state.  This constitution is the best example of why secularist and “neutralist” accounts of religion and the Constitution seldom deal with the state constitutions, declarations, and bills of rights that were in force when our national Constitution and its First Amendment were framed and ratified.  Among many other things, the South Carolina Constitution declared the “Christian protestant religion” the state’s established religion.  It required a brief, definitely Christian confession of faith to be made by churches incorporated by the state.  It also contained an excellent “declaration” of duties to which ministers must subscribe (from the Anglican Book of Common Prayer).

Disestablishment in South Carolina came in 1778.  It was not the work of non-Christians.  It was mostly the work of the Rev. William Tennent, a Presbyterian minister among the predominantly Christian “dissenters” of the state’s interior.  The new constitution of 1778 omitted a provision for paying ministers from parish funds: making support of “religion” voluntary and equal before the law.  To promote religious liberty, the constitution extended corporate status to all Protestant religious societies that would affirm the fundamental Christian doctrines stated in the South Carolina Constitution.  Protestant churches were granted equal civil and religious privileges.  Tennent did not argue for “neutrality” among all religions, nor for the secularization of civil government and law, but for equal treatment before the law of every denomination of Christians.  He argued for liberty of conscience and judgment in “religious matters”—but did not divorce “conscience” from Christianity:

No legislature has a right to interfere with the judgment and conscience of men, in religious matters, if their opinions and practices do not injure the state….The State may give countenance to religion, by defending and protecting all denominations of Christians, who are inoffensive and useful.  The State may enact good laws for the punishment of vice, and the encouragement of virtue.  The State may do anything for the support of religion, without partiality to particular societies, or imposition upon the rights of private judgment.

He did not advocate reducing Christianity to equality with all other religions, nor anti-“religious” secularizing of civil government or law.

The South Carolina Constitution of 1790 provided for religious freedom “without distinction or preference,” which meant that Roman Catholics and other non-Protestant religious groups—of which there were very few—were granted equal religious freedom with Protestants.  Article VIII provided that “the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of this state.”

Disestablishment in South Carolina preceded disestablishment in Virginia:  It did not present Virginia legislators or the framers and ratifiers of the U.S. Constitution or the First Amendment with a model of either “religious neutrality” or secularism.

The New Jersey Constitution of 1776 reflected a long tradition of Christian liberty in worship.  Article XVIII had strong provisions against an established church and for liberty of conscience in worship.  The very next article (XVIV) made it clear that this was a Protestant constitution:

…no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government,…shall be capable of being elected into any office of profit or trust…

Not until the New Jersey Constitution of 1844 (53 years after ratification of the First Amendment) were Roman Catholics allowed to hold office in New Jersey.

Since Delaware had long been part of Pennsylvania, it had a long tradition of religious toleration.  The colony’s first charter (1701) provided for liberty of conscience, but made it explicitly clear that Almighty God is the only Lord of conscience.  It also restricted public office to those who profess to “believe in Jesus Christ, the savior of the World…”

The Delaware Constitution of 1776, like its original charter, required a Trinitarian Christian oath of office.  Roman Catholics could hold office; non-Christians could not.  There was no religious qualification for voters, but officeholders had to “acknowledge the holy scriptures of the Old and New Testaments to be given by divine inspiration”.

The constitution prohibited the establishment of any one “religious sect” in preference to another: no Christian denomination was to be preferred to another by law.  It assumed that non-Christians would not be eligible for office.  Delaware’s 1776 Constitution was neither “neutral” nor secularist regarding “church and state” or religious freedom.

The new Delaware Constitution of 1792 stated that no religious test would be required as a qualification for any state office.  This neither secularized Delaware’s civil order nor made it absolutely “neutral” among all religions, for the constitution’s preamble stated that

Through divine goodness all men, have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences…

This formulation was not “neutral” among all religions, for it excluded atheism, agnosticism, Satanism, and polytheism; nor was it consistent with Mohammedanism.

Section I of the Delaware constitution asserted the rights of conscience in religious worship, prohibited legal preference of any “religious societies, denominations, or modes of worship,” and prohibited the kinds of practices associated with an established church.  It also declared: “It is the duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted…”  This referred to the covenant-making, covenant-keeping God of the Bible.  Hence it excluded, by implication, the worship of all false gods and all false religions from the legitimate protection of “the rights of worshipping and serving their Creator according to the dictates of their consciences.”

The provisions of the 1792 Delaware Constitution were intended to be consistent with the religious and moral doctrines of the Bible, but not to reduce Christianity (or Christianity and Judaism) to a level with all other religions and religious-ethical systems conceived by fallen man in a fallen world.  Approval of the religious actions of the false religions of the world would have nullified the covenantal protection of the prosperity of the community that the Delaware Constitution sought to continue through the worship of the Author of the universe and the piety and morality that He requires.

The Pennsylvania Constitution of 1776, one of the many manifestly Christian state fundamental laws created by our statesmen of the “Revolutionary” period, stated:

All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding:  And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent…

Like other early American fundamental laws with similar provisions, it did not state that all men have a natural and unalienable right to worship false gods, or many gods, or to worship them in immoral ways.  Nor did it level all religions down to a lowest common denominator.  The “natural and unalienable right to worship” was plainly linked to Almighty God, before whom members of the Pennsylvania House of Representatives had to swear this religious test oath:

I do believe in one God, the Creator and governor of the universe, the rewarder of the good and punisher of the wicked.  And I do acknowledge the Scriptures of the Old and New Testaments to be given by Divine inspiration.

This admitted Roman Catholics to full civil and religious rights, but excluded non-Christians.

Under pressure from the Jews of Philadelphia, the Pennsylvania Constitution of 1790 dropped the requirement that the divine inspiration of the New Testament be affirmed and all religious requirements for electors.  This was too late for it to have influenced the framing of the First Amendment.  It watered down previous provisions, but did not make Pennsylvania’s 1790 Constitution religiously “neutral” or secularist.  Pennsylvania officeholders still had to affirm the being of a God and a future state of rewards and punishments.  This requirement was maintained in the Pennsylvania constitutions of 1838 and 1873.

The Pennsylvania constitutions of 1790, 1838, and 1873 were neither “neutralist” nor secularist.  All recognized the being of God and preserved as fundamental law a 1700 statute penalizing anyone who would “willfully, premeditatedly, and despitefully blaspheme, or speak lightly or profanely of Almighty God, Christ Jesus, and the Holy Spirit, or the Scripture of Truth.”  Pennsylvania’s constitutions and laws protected Christianity until at least nine decades after the ratification of the First Amendment.

Maryland’s 1776 Constitution was definitely a Christian document.  Its Declaration of Rights ended the financial privileges of the Anglican Church, stipulated that a man would no longer be compelled to attend any particular place of worship, and prohibited an established church by forbidding legal compulsion to financially support a particular ministry.

These things were achieved by the work of the dissenting denominations: Protestants (mainly Presbyterians) and Roman Catholics—and the work of outstanding individuals like Roman Catholics Charles Carroll and John Carroll.  They were not the work of rationalists, Deists, or Unitarians, much less of secularists or advocates of “neutrality” among all religions.

The Maryland Bill of Rights and Constitution were not intended to “neutralize” or secularize the relationship between church and state.  They did not abandon Christian ethical standards regarding religious freedom.  The Maryland Declaration of Rights of 1776 allowed only “persons professing the Christian religion” to exercise religious freedom.  A 1781 law required public officials to subscribe to a declaration of belief in the Christian religion.  Not until 1826—35 years after ratification of the First Amendment—were Maryland Jews allowed to hold public office.  Despite their provisions against the establishment of a state church, the Maryland Declaration and Constitution of 1776 could not have been examples for a “neutral” or a secularist First Amendment.

Georgia’s colonial charter granted the free exercise of religion or freedom of conscience to “everyone except papists,” but its 1777 Constitution removed the restriction on Roman Catholics’ religious liberties.

The 1777 Constitution also stated that no one had to support a religious teacher not of his own religious profession: so Christians had to support their church’s or denomination’s pastors.  Like some other states that sought to prevent the establishment of one denomination in a position of superiority in the state, Georgia’s 1777 constitution stipulated that no clergyman of any denomination would be allowed to serve in the legislature.  These provisions were intended to be consistent with the fundamental Protestant Christianity of the document—which required members of the legislature to be “of the Protestant religion.”

Georgia’s new constitution of 1789 dropped the religious test for office, provided that there would be no legal infringement on a man’s civil rights because of his religious principles, and established the free exercise of religion for all persons.  No one would be required to support any religious profession but his own.  This did not create absolute “neutrality” among all religions or secularization of Georgia’s civil life: the state retained its Common Law foundation and its laws enforcing Christian morality.

The 1798 Georgia Constitution clarified the meaning of the free exercise of religion, stating that: “No one religious society shall ever be established in this state, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles.”

Neither the 1789 nor the 1798 Georgia constitution can be used to argue for a “neutral” or a secularist First Amendment: because neither was really religiously “neutral” or secularist.  And because Georgia did not ratify the First Amendment.

Rhode Island used its colonial charter as its state constitution until 1842.  Its charter established principles favorable to religious liberty and unfavorable to an established church, providing for the “free exercise and enjoyment” of the subjects’ “civil and religious rights.”

Roger Williams, the founder of Rhode Island, was the main influence on the charter.  His intentions were certainly Christian.  The original charter was brimming with Christian rhetoric and principles.  A fundamental purpose of the charter was “enjoyment of all their civil and religious rights”.  So was “that liberty, the true Christian faith and worship of God…”  The charter also stated—as would many of the newly independent state constitutions, declarations, and bills of rights—that this liberty was not to be used “to licentiousness and profaneness, nor to the civil injury or outward disturbance of others.”

Rhode Island residents were made into a body politic to be “in the better capacity to defend themselves, in their just rights and liberties, against all the enemies of the Christian faith…”  This was Rhode Island’s fundamental law until 1842: over 50 years after ratification of the First Amendment.  It is misleading for secularizers to define an “establishment of religion” as any governmental support of “religion,” and to cite Rhode Island as an example of a state “which never had an establishment and opposed every sort of one,” for Rhode Island was definitely neither secularist nor “neutral” toward Christianity.

The evidence from the states previously surveyed as well as from these remaining states is clear and compelling.  At the time of the Declaration of Independence:

  1. Our first thirteen states all had clearly and unmistakably Christian fundamental laws in their colonial charters (Connecticut and Rhode Island), or state constitutions, declarations of rights, and bills of rights (all the rest).
  2. One state, Rhode Island, had liberty of conscience within a Christian setting.
  3. Four states had a single denomination as the state’s established church: In Virginia, North Carolina, and New York the Anglican Church; in Connecticut the Congregational Church.
  4. Eight states had a quasi-established church, an establishment of Protestantism, or of Christianity: Massachusetts (Congregational Church), New Hampshire (Protestantism), South Carolina (Protestantism), New Jersey (Protestantism), Delaware (Christianity), Pennsylvania (Christianity), Maryland (Christianity), Georgia (Protestantism).

At the time of the framing and ratification of the U.S. Constitution (1787-1789), and of the Bill of Rights and the First Amendment (1789-1791):

  1. Two states (Rhode Island and Virginia) had full “religious freedom”—without separating Christianity from their laws.
  2. One state (New York) had “full religious freedom”—with two exceptions: a Protestant test oath for office (until 1806), and a requirement that all naturalized citizens renounce allegiance and subjection to all foreign princes and potentates in ecclesiastical and civil matters.
  3. The other 10 states were either Christian or Protestant establishment (or quasi-establishment) states with religious freedom bounded by Christian morality.

Regarding “disestablishment” and religious liberty:

  1. In NO state—including Virginia—was disestablishment a result of the leadership and work of non-Christians, or a significant number of non-Christians.
  2. In every state it was overwhelmingly the leadership and work of Christians: mainly of the “dissenting” denominations and churches, chiefly Baptists, Presbyterians, and other Protestants.
  3. Some tolerant members of the established church or denomination supported disestablishment: Anglicans/Episcopalians like Madison and Jefferson in Virginia; and Orthodox Congregationalists in Massachusetts—where Unitarians had taken over many Congregational churches from within.
  4. The arguments in the various states’ struggles for disestablishment of a state’s established, or quasi-established church, were conducted as arguments between Christians, not as disputes between Christians and pagans, rationalists, agnostics or atheists.
  5. In NO state was “disestablishment” intended to produce, or did it produce “neutrality” among all religions, de-Christianization or secularism.
  6. Christianity remained fundamental to the laws and practices of each state.
  7. “Disestablishment” in the states was not a precursor of a “religiously neutral” or a secularist First Amendment.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

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“Disestablishment” and “religious freedom” in North Carolina, New York, Connecticut, Massachusetts, and New Hampshire were motivated by different intentions than we have long been taught.

North Carolina had an Anglican establishment before independence and a non-Anglican majority that disliked the Anglican Church.  Dissenters were excluded from all offices of power and dignity and had to pay tithes to the Anglican Church.  Independence and the new constitution of 1776 changed this by precluding the existence of any established church and establishing a Protestant civil government.  Article XXXII declared:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article XXXI prohibited any clergyman from holding any office in the Senate, House of Commons, or Council of State while he continued to be a pastor.  So the North Carolina Constitution provided for the disestablishment of any one Christian denomination and the establishment of Christianity as fundamental to the law of the state.

North Carolina achieved disestablishment without the aid of any non-Christians, rationalists, or Deists—because there was a balance among the various Protestant denominations, and most “dissenting” Protestants disliked the Anglican Established Church.  Scotch-Irish Presbyterians—no rationalists they!—led in the battle for disestablishment and religious liberty.

North Carolina was a clearly Protestant state until at least 1835, when it provided religious liberty for Roman Catholics, and then in 1868, when, still a Christian state, it removed religious and civil disabilities from Jews.

New York’s 1777 Constitution, the third main victory for disestablishment of the Anglican Church, provided for “free exercise and enjoyment of religious profession and worship.”  But it stated that “the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”

New York’s constitution excluded all ministers of the Gospel from office—because of the great importance of their duties as ministers, not on anti-clerical, religiously “neutral” or secularist grounds.  It also abolished all parts of the Common Law and colonial statutes that might be construed as establishing “any particular denomination of Christians or their ministers.”  It did not do away with the Common Law as such—with its many Christian principles and rights—so Christianity remained fundamental to the laws of New York.

In 1784 New York abolished the remaining legal privileges of the Anglican Church.  It also passed a law to restrict the political power of Roman Catholics:  requiring all persons naturalized by the state to take an oath renouncing all foreign allegiance and subjection in both civil and ecclesiastical matters.  This test oath was not repealed until 1806.

Disestablishment in New York was achieved by Christians who wanted religious and civil liberty without abandoning Christianity.

Connecticut did not achieve disestablishment and religious freedom until 1818—for until that year the colonial charter served as the state’s constitution, and the Congregational Church remained established until the new Constitution of 1818.  Disestablishment was the will of the ministers, prominent laymen, and ordinary church members.  When it did come, it was supported by tolerant Congregationalists, Baptists, Methodists, most Episcopalians, Quakers, and a tiny minority of the Unitarians and Universalists.  Most rationalists in Connecticut (Unitarians and Universalists) were on the side of the establishment, not disestablishment—reversing the supposed order of “separation of church and state” mythology.

The Connecticut Constitution, in the clause after it established freedom of religious profession and worship for all persons in the state, stated that this right “shall not be construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State.”  So much for the freedom of all religions!  The next section said “no preference shall be given by law to any Christian sect or mode of worship,” which meant that Christianity was virtually recognized as the state’s belief.  Its article on religion—drafted by a subcommittee of “Jeffersonian Republicans”—made it clear that even with “separation of church and state” this was a Christian constitution.  It referred to God as “the Supreme Being, the Great Creator and Preserver of the universe,” and said that “every society or denomination of Christians in this State, shall have and enjoy the same and equal powers, rights and privileges….”

Disestablishment in Connecticut was won by various denominations of “dissenting” Christians, with little help from non-Christians.  It was partly motivated by Christians’ desire to be free of domination by an established church that had been infiltrated by the false doctrines of Unitarianism.

Massachusetts had the most protracted conflict over disestablishment of any state.  As early as the middle of the 18th century, “Strict Congregational” churches joined Baptists in opposing the established Congregational churches, for they considered many members of the established church to be unconverted and did not want to pay taxes to support such a church.

The War for Independence did not bring a drive for “neutrality” among religions or for secularism.  As Stokes says, the new government’s constitution had “resonant and high sounding clauses concerning the sanctity of religion and liberty, immediately followed by others denying religious liberty in any adequate sense to many creeds and sects.”[1]  That is because they drew intellectual and moral distinctions that Stokes did not, because they knew some things about the world’s religions’ practices that he should have known.  The new state Constitution of 1780’s Declaration of Rights stated the duty of all men to worship God, “the SUPREME BEING, the Great Creator and preserver of the universe”—not any other gods.   It stated the right and principle of individual liberty of conscience in worship and religious beliefs, but qualified this by requiring that the individual not disturb the public peace or others’ religious worship.  The framers of the Massachusetts Constitution were rightly concerned to protect religious worship and the public peace; and to protect their people’s lives, liberty, persons and property against such religious practices as human sacrifice, cannibalism, infanticide, and “holy wars.”

Article III made it clear that “liberty of conscience” was not merely individualistic:

III.  As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through a community but by the institution of the public worship of God, and of public instructions in piety, religion, and morality:  Therefore, to promote their happiness, and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.

This article also affirmed the legislature’s authority to require all subjects to attend the teachings of these Protestant ministers, if they could conscientiously do so.  It stated the equality of all Christian—but no non-Christian—denominations before the law:

And every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.

This article was not modified for 53 years (1833)—more than 40 years after the addition of the First Amendment to the U.S. Constitution.

As in Connecticut, the established Congregational Church in Massachusetts was weakened by the growth of rationalism within, and a division between the theologically orthodox and those who would later call themselves Unitarians.  An 1818 legal decision said that the Unitarian “society” that owned a church, not the Christian majority of the members of that church, could control that church.  This gave the Unitarians a great advantage and weakened the Congregational Church, but provided an opportunity for the growth of disestablishment thought, since orthodox Christians would not want to be legally subordinate to a church in the hands of apostates.

Not until 1831 did the legislature vote for disestablishment—but then it did so decisively.  In 1833 the state’s citizens voted nearly 3:1 to remove Article III from the state constitution and add an article favoring the equality of “all religious sects and denominations demeaning themselves peaceably, and as good citizens of the commonwealth…”

The growth of Unitarianism contributed to disestablishment, but disestablishment in Massachusetts was not produced by Unitarians or rationalists.  It was a result of the growth and work of the dissenting Christian denominations, especially the Baptists.  Episcopalians, since their church was not the established church, supported disestablishment, as did other dissenting denominations.  Probably many orthodox Congregationalists, persuaded by Baptists’ “liberty of conscience” arguments and not wanting to give the growing Unitarian faction in Congregational Churches the privileges of an established church, supported disestablishment.

Once again, disestablishment and religious liberty were the work of Christians, not of non-Christians.

New Hampshire’s 1778 Constitution’s Bill of Rights was clearly a Protestant document.  It stated that the “rights of conscience” are unalienable, and supported the individual’s right of liberty of conscience in worship and belief.  Its sixth article said the best security to government is “morality and piety, rightly grounded on evangelical principles”, and “evangelical” meant Protestant Christian.  It called for towns, parishes, and religious societies to “make adequate provision, at their own expense, for the support and maintenance of public protestant teachers of piety, religion and morality.”  It stated that “every denomination of Christians, demeaning themselves quietly, and as good subjects of the state, shall be equally under the protection of the law…”

Its Form of Government required every representative in the legislature to be “of the protestant religion,” and stated that one who left the Protestant religion would automatically cease to be a representative of his town or district.  Not until 1852—more than six decades after the ratification of the U.S. Constitution’s First Amendment—was the required two-thirds popular vote to repeal the Christian religious test oath approved.

The state’s constitutions of 1778 and 1792 did not support an established church, but by providing for local laws to support religion in effect established Protestantism.  New Hampshire continued to favor Protestantism in particular and Christianity in general for more than a century and a half after the First Amendment had been ratified.

As is evident from the states we have examined, state governments’ support of Christianity long after the addition of the First Amendment, Stokes’s comment that New Hampshire’s retention of these provisions is “inconsistent with the American tradition of impartiality of the State in matters involving the religious convictions of citizens”[2]  is without foundation in fact and foolish.

It is without foundation in fact because the evidence of American “church and state” relations throughout the era of “disestablishment” clearly indicates that the states have not been “impartial” in regard to religion or the “religious convictions” of citizens—and by the manifest intentions of their constitutions and laws should not have been so.  Neither the states’ “disestablishments” nor the First Amendment set up “impartiality” as the standard for our civil governments’ relationships to “religion” or to Christianity.  If there was any “impartiality,” it was meant to operate only among Christian denominations, or among religions whose ethics or exercise of religion did not include actions that violate others’ rights.  At most, it was impartiality among Christian denominations, with tolerance of other religions that at least conformed to Christian ethics.

It is foolish because impartiality or neutrality among religions is impossible:  Religions differ radically in their theological and ethical doctrines and requirements.  To be impartial or neutral among conflicting doctrines and requirements is to abandon logic.  It is also to commit the government to permitting adherents of disparate religions to violate others’ rights to life, liberty, person, and property.

“Impartiality” among all religions at first glance appears “understanding,” and “tolerant,” but upon closer inspection it is seen to be ignorance, amorality, and a lack of concern for others’ wellbeing.  “Impartiality” or “neutrality” neglects the horrific consequences of the free exercise of many religions that differ from Christian ethics.  Thank God we did not have a tradition of “impartiality” toward all religions!

Clearly, not only in Virginia, but also in North Carolina, New York, Connecticut, Massachusetts, and New Hampshire disestablishment and religious liberty were not the results—in any state—of popular intentions to live under “religiously neutral,” secularist, or de-Christianized civil government and laws.  In every state disestablishment and religious liberty were the results of Christian leadership and overwhelming support by diverse denominations of Christians, and in no state was “religious neutrality”, secularism, or de-Christianization a result of disestablishment.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] Anson Phelps Stokes, Church and State in the United States. 3 vols. (New York: Harper and Brothers, 1950), vol I, p. 423.

[2] Stokes, Vol. I, 432.

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We have long been told that the American “Founding” was a product of rationalism and of secularist political thought; that the states’ struggles for “disestablishment” and “religious freedom” were driven by a desire for “neutrality” among all religions, or for secularism; and that the states’ religiously “neutral” or secularist “disestablishment” and “religious freedom” were precursors of a religiously “neutral” or secularist First Amendment to our federal Constitution.  Advocates who use the Constitution’s First Amendment to establish “neutrality” among all religions, or secularism, have long used the battle for disestablishment of the Anglican Church in Virginia to advance their objective.

None of their arguments fit the evidence.  Let us consider the evidence of “disestablishment” in Virginia.

Virginia was the most famous victory for disestablishment of the Anglican Church.  The leaders of the debates in the Virginia legislature—Thomas Jefferson, James Madison, George Mason, and Patrick Henry—were all professing Christians: all Anglicans at that time.  Jefferson was still orthodox, financially supported several Christian ministries, and would not develop significant doubts about the Christian faith for a few decades.  When he did develop such doubts, he kept them secret: telling the recipients of such letters to keep their contents secret or not sending the letter.  Madison and Mason were orthodox.  Henry, the most influential man in the state, was a zealous Calvinist.

The main background of the struggle did not consist of any significant increase of rationalism (Deism, Unitarianism) or non-Christian thought, but of opposition to the spiritual laxity of the Anglican clergy by the numerous Baptists and Presbyterians, many Anglican laymen, and Methodists.  And of opposition to Anglican Church persecution of Baptists, Presbyterians, Methodists, Lutherans, and members of other “dissenting sects.”  Many Anglicans, like Madison, opposed this persecution.  Furthermore, the Anglican vestries wanted to rule their own churches, not to remain under the authority of the English church hierarchy.

The famous Rev. John Leland led the Baptists, and the Rev. Samuel Davies led the Presbyterians in the struggle for religious liberty.

Jefferson’s famous Act Establishing Religious Freedom opposed compulsory taxation of non-Anglicans to support things they didn’t believe.  Its ideas and rhetoric were clearly Christian, not rationalistic, nor religiously “neutral.”  Far from beginning the movement for disestablishment of the Anglican Church, Jefferson’s famous Act was a product of it.  Though Jefferson wrote it in 1777, it was not passed until 1786, under Madison’s, not Jefferson’s leadership.  At the time of his writing the act and his work for disestablishment, Jefferson was a professing Christian, not a closet Unitarian, nor a rationalist.  Jefferson’s religious views changed as he got older.  He was an orthodox Christian in at least the first half of his adult years—when he wrote the first draft of the Declaration of Independence (1776), served in the Virginia legislature, served as governor, and served as President (1800-1808).  The last decade or so of his life (ca. 1813-1826) he was a closet Unitarian.[1]  He was not a rationalist during Virginia’s struggle for disestablishment of the Anglican Church and for “religious liberty.”

Madison’s Memorial and Remonstrance Against Religious Assessments (1784) used Christian rhetoric and changed the Virginia public’s views from state support of “religion”—Christianity—through financial aid.  It was much more influential than Jefferson’s Act Establishing Religious Freedom.  That plus the removal of Patrick Henry, the most popular man in the state, its greatest orator, and the great advocate of state aid to Christianity—certainly not to “religion” in general—from the legislature by his being elected governor, enabled the bill to pass.

Anglicans were a distinct minority in the state, but were two-thirds of the legislature.  Most Anglicans in the legislature had been convinced by Christian writers that all churches should be equal before the law.  The dissenting ministers cleared the way for disestablishment.  The legislators who voted for disestablishment were mostly members of the Established Church.  The bill was not enacted to make Virginia law either “neutral” among all religions or secularist—and in fact did not do so.

Stokes credits Jefferson’s statement, in his 1821 Autobiography, that during the debate on his bill the “great majority” of Virginia legislators rejected a proposed amendment to the bill adding the name of Christ, so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion,” and that this proves that they wanted to include protection for the free exercise of every religion—including “the Mahometan, the Hindoo, and the infidel of every denomination.”[2]  For several reasons, this is difficult to believe:  First, This would have given legal protection to such contradictions of Virginia laws, the Christian Common Law, and Christian morality as the Mohammedan harem, “honor killings,” and jihads against unbelievers in that religion; the Hindu sutee (immolation of the wife on her husband’s funeral pyre), caste system, and parents’ right to murder their children, especially newborn daughters, via child sacrifice.[3]  Not to mention other pagan religions’ orgies, human sacrifice and cannibalism.

Second, this would have been contradicted by Article 16 of the Virginia Bill of Rights’ statement that Virginians should practice “Christian forbearance, love, and charity towards each other.”  That placed Christian ethics in a position of superiority to those of all other religions: an obvious contradiction to the idea that all religions are equal.  To have accepted the old Jefferson’s remembrance of Virginia’s legislators’ intentions, Stokes would have to have believed that most of Virginia’s legislators were ignoramuses or thoughtless, or that they were carried away by the passion of the moment.  But Virginia’s legislators were not ignorant, nor were they intellectual or moral dunces.

Third, all churches in Virginia were not on the same legal basis until 1787, a year after approval of Jefferson’s bill, when the special law incorporating the Episcopal Church was repealed.  Not until 1802—17 years after Jefferson’s bill—did the Virginia Assembly remove control of the glebe lands from the Episcopal Church.  Not until 1840—54 years after Jefferson’s bill—did a state Court of Appeals decision finally sustain the 1802 act and make “separation of church and state” complete in Virginia.

Fourth, Jefferson’s Bill for Establishing Religious Freedom did establish religious freedom  in Virginia when it was enacted (1786), but it did not remove all state support for the Anglican Church.  And it was not intended to make Virginia’s laws “neutral” among all religions (a logical impossibility, for religions have contradictory beliefs and practices), or secular (separated from all religions’ influence), or to de-Christianize Virginia’s laws:  far from it!  Jefferson’s famous Bill, #82 was part of a set of bills concerning religion apparently framed by Jefferson and approved by the committee he chaired in the Virginia General Assembly.  Bill #83 was “…for Saving the Property of the Church Heretofore by Law Established” (the Church of England).  Bill #84 was “…for Punishing Disturbers of Religious Worship and Sabbath Breakers”.  Bill #85 was “…for Appointing Days of Public Fasting and Thanksgiving”.  Bill #86 was “…for Annulling Marriages Prohibited by the Levitical Law” (the law of God revealed in the Old Testament book of Leviticus).  This package of bills—and their enactment—make it very clear that neither Jefferson nor the Virginia legislature was trying to make Virginia laws “neutral” among all religions, or secular, much less de-Christianized.

“Disestablishment” in Virginia was only removal of all legal preference for the Episcopal Church.  It was not fully achieved until 1840—54 years after Jefferson’s bill.  It was accomplished—overwhelmingly—by the efforts of Christians, particularly of the former “dissenting sects.”  It obviously was not intended to create, and did not produce “neutrality” among all religions, secularism, or de-Christianization.  It therefore is not, and cannot be either a precedent or evidence for “neutrality” among all religions, secularism, or de-Christianization of American law.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] The development of Jefferson’s religious thought is carefully set forth in Mark A. Beliles and Jerry Newcombe, Doubting Thomas?; The Religious Life and Legacy of Thomas Jefferson (New York: Morgan James Publishing, 2015), 13-184.

[2] The full quotation is given in Beliles and Newcome, 222.

[3] George Grant and Gregory Wilbur, The Christian Almanac; A Book of Days Celebrating History’s Most Significant People and Events, Second Edition (Nashville, Tennessee: Cumberland House, 2004), 541.

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In June 1776, George Mason wrote the Virginia Declaration of Rights. It declared natural rights, the essential liberties of the people, and republican government by consent of the people. The delegates to the Fifth Virginia Convention—the government after the royal governor had fled from Williamsburg—voted to accept the Declaration of Rights and a state constitution rooted upon revolutionary principles of rights and popular government.

When writing about religious liberties in the Declaration of Rights, Mason, influenced by the ideas of John Locke’s Letter Concerning Toleration, wrote, “All men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience.” This principle of religious toleration seemed liberal-minded during the time of the Enlightenment, or age of reason.

A young James Madison disagreed and offered an amendment that fundamentally altered the principle of toleration to a new and revolutionary one—religious liberty. The Declaration of Rights read: “All men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

Madison’s fellow delegates accepted that freedom of religion was an inalienable right (and a duty to God), but they were unwilling to accept that Madison’s amendment disestablished the official Anglican Church as part of the constitution-making. Nevertheless, Baptists, Presbyterians, and Lutherans began flooding the House of Delegates with petitions calling for disestablishment. The legislature responded to the demands of their constituents, relieving dissenters of paying taxes for the support of the Anglican Church.

In early 1777, Thomas Jefferson joined the cause of religious liberty in Virginia. Jefferson believed that the Virginia constitution had a variety of shortcomings and won appointment to the committee to revise the state laws with George Wythe and Edmund Pendleton. Jefferson’s object was to eradicate “every fiber…of ancient or future aristocracy.”

As an Enlightenment thinker, Jefferson believed that religion was a matter of reason and equated religious liberty with a free mind. Jefferson penned a bill for disestablishment in 1777 but did not present it to the legislature. Jefferson’s Bill for Establishing Religious Freedom was introduced in the House of Delegates in June 1779.

The preamble asserted that “Almighty God hath created the mind free,” and thus was free from restraint by the civil government. The bill would enact disestablishment as Jefferson affirmed, “The opinions of man are not the object of civil government.”

The bill, however, was soundly defeated. Many Virginia founders including Patrick Henry, Richard Henry Lee, John Marshall, Pendleton, and initially, George Washington, supported a general assessment, or tax money, to be allocated to a denomination of a person’s choice or to schools and education rather than religion. They argued that republican government depended on the virtue of the citizenry and leaders, and that virtue was primarily encouraged by religion. The general assessment bill did not establish a particular denomination or even Christianity broadly as the state religion, but rather sought to support religion to inculcate virtue for republican self-government. The House passed a resolution for the bill in 1784, and Henry chaired the committee to draft it.

Jefferson and Madison (neither of whom was especially known for his piety) formed an improbable alliance with an array of dissenting religious groups including Baptists, Methodists, Quakers, and Presbyterians to fight the general assessment. Both sides of the debate wrote petitions to the House to influence the outcome.

Madison weighed in on the debate, anonymously writing the highly influential “Memorial and Remonstrance Against Religious Assessments.” He wrote: “The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”

The Virginia Statute for Religious Freedom passed into law on January 6, 1786. The Assembly enacted the idea into law that:

No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or beliefs….We are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind.

Jefferson and the legislature then made the law and the principle of religious liberty a fundamental right that could never be revoked by a future legislature, binding future generations to the rights of man. “If any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”

Most states pursued religious liberty as a fundamental right and disestablished their churches, though not all did, because of principle of federalism in the U.S. Constitution. In the 1830s, Massachusetts became the last state to disestablish. But, the American Revolution and founding advanced both civil and religious liberty for the American people.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

 

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At the time of the Revolution, Americans had shown that established churches could co-exist with free exercise of religious conscience. Still, religious restrictions on holding office, requirements to attend some religious service and financial support of the colony’s official church through taxes remained. Of those, as might be expected, the last was the most reviled by the public and, thereby, most easily attacked by willing politicians. It is on that ground that disestablishment of most colonial churches was initiated during the Revolutionary and Early Republican periods.

The Southern colonies, especially, moved to disestablish the official status of the Anglican Episcopal Church. North Carolina began the process in 1776, followed during the war by New York, Maryland, and South Carolina. There also began a decade-long struggle in Virginia towards that end. The Virginia constitution of 1776 declared, “THAT religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience ….” Thus was protected free exercise, but the established church yet survived. After the war, demands increased to disestablish the Episcopal Church, tainted by its connection to the Church of England. In 1784, the popular governor, Patrick Henry, proposed his “Bill Establishing a Provision for Teachers of the Christian Religion.” This would have protected de facto the preferred position of the Episcopal Church even if formal disestablishment were to occur, because it had the majority of pastors. Madison helped defeat the bill with his “Memorial and Remonstrance against Religious Assessments” when it came up for a vote in 1785. Madison was motivated in part by what he perceived as continuing persecution of religious dissent, despite the state constitution’s high-sounding declaration. He fulminated in 1784, “That diabolical, Hell conceived principle of persecution rages among some and, to their eternal infamy, the clergy can furnish their quota of imps for such business.” Finally, on January 16, 1786, the legislature adopted Jefferson’s Statute of Religious Liberty, to disestablish fully the Episcopal Church.

On the other hand, the deeply engrained theocratic tradition in New England prevented complete disestablishment of the Congregational Church. The Massachusetts Constitution of 1780 had a strongly pious Preamble, and in Article II of its Declaration of Rights asserted not only the right, but the duty, of everyone “publickly, and at stated seasons, to worship the SUPREME BEING, the Great Creator and Preserver of the Universe.” To be sure, no one would be punished for worshipping God according to the dictates of his conscience. But worship, one must. Article III emphasized the classic republican connection among good government, religion, and morality. This connection could only be maintained by the “publick worship of God, and…publick instructions in piety, religion and morality.” Accordingly, the legislature was directed to require the “towns…and other bodies politick, or religious societies” to provide financial support for such public worship and for “the support and maintenance of publick protestant teachers of piety, religion and morality.” Moreover, the people, acting through their legislature, could compel attendance at these services.

These blunt commands were softened by allowing those paying the support to direct that the funds go to a religious teacher of their own denomination whose services the taxpayer attended. If there was none, the funds went to the support of teachers the parish selected. Most likely, those selected would belong to the Congregational Church, in light of its dominance among the populace. As well, the same article prohibited the formal legal subordination of one denomination to another. This partial disestablishment of the Congregational Church was largely undermined by the support provision. Adherence to proper religious doctrine was also enforced for state officials through their declaration before taking office that they “believe the christian [sic] religion, and have a firm persuasion of its truth.”

By the time the Constitution was adopted, most states had fully disestablished their churches, though Massachusetts, Connecticut, New Hampshire, Maryland, and North Carolina retained some provision for mandatory taxation for the religion of one’s choosing. At the state ratifying conventions, many delegates had expressed fear that Congress might establish a national religion. The first Congress in 1789 debated a proposed Bill of Rights. Madison included a provision that no one’s rights should be abridged by Congress on account of religion, and that no national religion shall be established. The right of conscience was also protected in another section against invasion by the states. Significantly, the draft said nothing about state religious establishments. Elbridge Gerry of Massachusetts objected to “national” as implying that the United States was a consolidated entity, rather than a confederation. In response, the Report of the House Committee altered the language to “no religion shall be established by law.” The sections protecting the rights of conscience against infringement by Congress and the states, respectively, were unchanged. There still was no language about state religious establishments.

The amendments adopted by the House once more changed the language. Congress was disabled from establishing religion or prohibiting its free exercise. The rights of conscience were expressly protected once more against infringement by either Congress or the states. Yet again, no such language addressed state religious establishments. The clear implication of the language, then, was that states were not prohibited from having official churches, as long as the rights of conscience were maintained, but that Congress could not establish a church for the United States.

The Senate adopted its own amendments. The relevant provision prohibited Congress from “establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” The House’s restriction on interference with the rights of conscience by the states was dropped. A conference between House and Senate developed the language submitted to the states for approval. The Senate’s establishment language was seen as too weak, as it opened the door for Congress to fund a religious body, thereby creating an established church through the back door of preferred financial support. In turn, the House’s language that restricted state legislative power was deemed contrary to the purpose of the Bill of Rights, namely, to limit the general government. The result was, as Supreme Court justice and professor of constitutional law at Harvard, Joseph Story, wrote later in his influential Commentaries on the Constitution of the United States, “[The] whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” Further, Story wrote, “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government…. [The] Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

However, simply adopting in isolation the House’s language that merely prohibited Congress from establishing religion would suggest that Congress could disestablish existing state churches.  That possibility ran counter to the federal nature of the union and endangered adoption of the amendments by undermining support in New England. That produced the awkward language that “Congress shall make no law respecting an establishment of religion.” Congress shall not establish formal religious orthodoxy through a national church, such as the overall still dominant Episcopal Church; at the same time, Congress, likely to be dominated by adherents of that church, shall not make it its business to disestablish existing state churches. The clause, one might say, incorporates a principle of antidisestablishmentarianism, too. Free exercise of religion (but not of non-religion) was fully embraced even in New England by the late 1780s, though it took several more decades of controversy to disestablish fully the Congregational Church in Connecticut (1819) and Massachusetts (1833).

Today, determining the scope and meaning of the establishment clause in controversies far removed from imprisonment for dissent, civil disabilities for attending prescribed religious services, or direct funding of specific ecclesiastical bodies has proved difficult for the Supreme Court. The clause retains both aspects of disestablishment and of its opposite. Religious test oaths are forbidden, which also means that one’s position even as a leader of a religious denomination is not a disqualifier from political office. The recent questioning by Senators Kamala Harris and Maizie Hirono of a nominee to the federal bench about his fitness for office due to his membership in the Catholic Knights of Columbus at least violates the principle behind the prohibition of such oaths.

As well, the Supreme Court has frequently reminded courts and legislatures that the establishment clause prohibits laws that demonstrate hostility to religion. Indeed, government may take a position of benevolent neutrality towards religion and may (and sometimes must) accommodate the actions of religious believers in otherwise neutral laws of general applicability. Certainly, contrary to some exaggerated assertions based on a hasty metaphor in a politically-charged letter by Thomas Jefferson, the clause does not represent a strict principle of an “impenetrable wall of separation” between church and state. Rather, the establishment clause originally represented a limit on the general government to interfere with institutions that represented the sovereign authority of the people of the states, either by displacing them with a superior national church or by prohibiting them (or, even worse, just some of them) directly. The free exercise clause (and its ubiquitous counterparts in the state constitutions) protected the individual rights of conscience and free exercise of religion, a distinction that Justice Clarence Thomas has emphasized. Today, the establishment clause attempts to strike a balance between, on the one hand, the importance to republican government of fostering the natural human inclination to religion and association in religious communities and, on the other, the social instability that historically has occurred when the realm of Caesar is fused to a particular conception of God, as well as the inevitable corruption of religious doctrine and institutions that results from dependence on government favors.

Let the unabashedly left-wing Justice William Douglas have the last word. He wrote in 1952 in Zorach v. Clausen, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State…. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly…. We are a religious people whose institutions presuppose a Supreme Being…. When the State encourages religious instruction…, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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In the history of human society, religion and politics have almost inevitably been intertwined. Those in control of the organs of government seek to harness for their own legitimacy and power the natural human longing to participate in a project that transcends one’s everyday life. Religious belief and participation in religious ceremonies satisfy that personal longing, while they are also useful tools to control the actions of the populace and sustain the social order. Because politics has those same objectives of control and order, the levers of religious and political power not infrequently have been held by the same hands. The normal outgrowth of this is an officially-recognized religious dogma with approved outward manifestations, along with suppression, to different extents, of those who would deviate from the true path. In similar vein, those who would dissent from religious orthodoxy often make common cause with those who would challenge the reigning political faction.

In the medieval Christian West, there was a formal separation between the religious and political spheres, represented by Pope and Emperor, which reflected Jesus’s teaching about the superior domain of God and the profane (in the classic meaning) temporal world. However, there, too, the reality was different, in that those entrusted with the care of the soul often participated in power politics. The Pope and his control over the Papal States, the various warrior-bishops in the Holy Roman Empire, the English House of Lords Spiritual and Temporal, and the Archbishop/Electors that chose the Holy Roman Emperor come to mind. As well, secular rulers frequently attempted to influence, by various means, the selection of the Pope and subordinate clergy, and to secure the endorsement of the administrators of the spiritual realm for immediate political goals. The “Babylonian Captivity” of the popes at Avignon under the control of the French king is a prime example.

The end of feudalism and the emergence of the modern State were marked by increased wealth of the political rulers and by centralization of power in the person and the office of the king. In that era of royal absolutism, competing centers of power which might dilute the king’s ability to lay sole claim on the subjects’ loyalties had to be made to submit. Thus, the nobility, stripped of its important ancient privileges, increasingly became courtiers residing at the monarch’s court, where they were more easily controlled. The clergy, too, had to be neutralized. Much is told about King Henry VIII’s project to reduce the Catholic Church to the Church in England and, later, the Church of England–with the monarch as its head. Henry was not alone. With the shattering of the Universal Christian Church by the Reformation, the Holy Roman Empire’s superficial political universality came under pressure. The constituent duchies, principalities, and other assorted noble enclaves aligned based on religion, often for reasons of the rulers’ political ambitions. The specter of religious warfare induced the various parties to adopt the principle of cuius regio, eius religio, that is, the religion of the ruler (Catholicism or Lutheranism) would be the religion of the ruled. Those who did not wish to follow their rulers’ lead could emigrate to a more sympathetic realm; otherwise they might be subject to persecution.

With the vessel of religious universality broken, the essentially anarchistic imperative of Protestantism (“sola scriptura”) led to the formation of various sects beyond the relatively conservative Lutherans and the even more traditional Anglicans. Despite the establishment of the Church of England, the struggle between Anglicanism and Catholicism continued during the 16th and 17th centuries, as various English monarchs favored one or the other. Calvinist Presbyterians, nominally dissenters in England, also had a brief turn in power, through the person of James I Stuart, who had become the head of the Presbyterian Church of Scotland during his tenure as King of Scotland. Excluded from political power were adherents of various dissenting sects, such as Anabaptists and Quakers, and, except during the Oliver Cromwell “Protectorate,” other Calvinists. Their radicalism was seen as subversive of the existing order. Those and other dissenters primarily belonged to the middle classes of artisans, farmers, and merchants.

The common denominator in most European polities was the formal establishment of a particular Christian denomination and the suppression of dissenting views. There were exceptions, however. For example, the 17th century United Provinces of the Netherlands established the Dutch Reformed Church as the official religious body, yet broadly tolerated free exercise of religion even by non-traditional Christians and by Jews. This policy of relative tolerance attracted many adherents of persecuted faiths to the Dutch Republic. It also presented an alternative model to that of most state churches at the time, namely, that officially established state churches need not result in suppression of dissent.

Among the English dissenters were two groups of Calvinists, the “Pilgrim Fathers” and the “Puritans.” While the former sought to separate themselves from the Church of England, the latter hoped to purify it from within by continuing to associate their congregations with the official church. They abandoned that policy after the Restoration and became the Congregational Church. Both groups established settlements in New England. Despite their geographic proximity, their theological differences–though perhaps trivial to an outsider–kept them distinct for several decades, until the Pilgrims’ Plymouth colony was absorbed by the much larger Massachusetts Bay Colony in 1690.

In popular myth, Europeans came to British North America in search of religious freedom, which they heartily extended to all who joined them. The truth is more complex. The Pilgrims and Puritans, for example, indeed came for religious freedom, but for themselves only. Conformity in community, not diversity or toleration of dissent, was the goal. God’s law controlled, and governance was put in the hands of those who could be trusted to be faithful to the ultimate objective, the realization of the City of God on Earth.

As the Pilgrims’ “Mayflower Compact” of November 11, 1620, stated, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Puritan colonies in New England similarly strived for their goal to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess, as also the discipline of the Churches, which according to the truth of the said gospel is now practiced among us ….” As in Massachusetts Bay, justice was to be administered according to the laws established by the new government, “and for want thereof according to the rule of the word of God.” The Governor must “be always a member of some approved congregation.”

The theocratic nature of the 17th century New England societies meant that they limited new settlers to those who belonged to their approved strain of Puritanism. Those numbered many thousands, however, as the Massachusetts Bay Colony grew to 10,000 within four years. Dissenters were expelled. Those who failed to get the message of conformity were subject to punishment, such as four Quakers who were publicly executed in 1659 after they repeatedly entered the colony and challenged the ruling authorities.

The religious congregationalism that was at the core of the Puritans’ anti-episcopalism and which justified their expulsion of dissenters from their religio-political commonwealth also caused those dissenters to form communities of like-minded believers. Some of them, such as the famous dissenters Roger Williams and Anne Hutchinson, founded settlements in what became Rhode Island. Unlike Massachusetts Bay, these new settlements allowed freedom of conscience and lacked the official religion of other New England settlements.

During the English rule, at least nine colonies had formally established churches, generally the Anglican Church, and all required office holders to be at least Christians. However, other colonies’ founding had lacked the theocratic imperative of New England. While the Anglican Church enjoyed economic and political benefits from its established position, freedom of conscience and practice was extended to other Protestant denominations. Rhode Island, Pennsylvania, and South Carolina were founded with the deliberate goal of protecting peaceable religious practice. Other colonies, seeking to attract as many settlers as possible for the financial gain of investors (Virginia, New York) or proprietors (New Jersey, Maryland, Georgia) had pragmatic reasons to tread softly on the issue of religious orthodoxy.

The position of Catholics and Jews to practice their faith was more tenuous. In England, the Bill of Rights adopted in 1689 officially declared the country a “protestant” realm and prohibited the monarch from being, or being married to, a Catholic, a prohibition reinforced in the Act of Settlement of 1701. Similarly, only Protestants were guaranteed the right to bear arms. Other statutory restrictions on Catholics, Jews, and non-trinitarian Christian sects remained in place well into the 19th century.

In North America, even enlightened charters demonstrated the limits of religious tolerance. Colonial Pennsylvania rightfully has had a reputation for religious liberality. Thus, its 1701 Charter of Privileges declares that no person “who shall Confess and acknowledge one Almighty God…shall be in any Case molested or prejudiced in his or their person or Estate because of his or their Conscientious perswasion [sic] or Practice” or to attend any religious worship or do anything else contrary to their religious beliefs. Nevertheless, that same charter, as well as Pennsylvania’s lengthy “Frame of the Government” in 1682, contained a ubiquitous feature of such constitutions, the religious test oath or affirmation, in this case that all government officials had to “profess faith in Jesus Christ.” Maryland’s Toleration Act of 1649 recognized freedom of worship for anyone “professing to believe in Jesus Christ. However, the Act also provided for the death penalty for blasphemy or “[denying] our Saviour Jesus Christ to bee the sonne of God, or shall deny the holy Trinity the father sonne and holy Ghost.”

The formal establishments remained during the 18th century. However, the enforcement of religious conformity and suppression of dissent was undermined by the growth of the populations from many different European countries, the diversity of their religious beliefs, the relative isolation of settlements due to the large size of the colonies outside New England, and the scarcity of Anglican clergy and absence of a strong hierarchy. True, local communities might be remarkably homogeneous. In the colony at large, Quakers might be attracted to Pennsylvania for shared religious values, Catholics to Maryland, and Congregationalists to New England. Anglicans might be the majority in most colonies. Yet, the variety of sects within a colony and, even more pronounced, across the several North American colonies, combined with the general desire for material success, made tolerance a pragmatic policy. Eventually, pragmatic necessity became aspirational virtue. It must not be overlooked, however, that even the most tolerant polities had no use for skeptics, agnostics, or atheists. There was no Inquisition; the reality was more akin to “don’t ask, don’t tell.” Nevertheless, freedom of religion did not mean freedom from religion.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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In thinking about what the Declaration of Independence meant for state powers, perhaps the better question is what powers didn’t the states have upon their independence? Consider the very first line and note what is emphasized: “The unanimous Declaration of the thirteen united States of America.” This is telling. Why use “unanimous” if all the states were considered one entity? Importantly, “united” is not emphasized. This also occurs in the last paragraph of the document with the reference to the “Representatives of the united States of America, in General Congress, Assembled…” “Nation” only appears once in the Declaration, and it refers to England, not America. Rather than “nation,” the reference used twice is “Free and Independent States.” Indeed, during this time and up until the Constitution was ratified, the United States was cast as a plural entity. So, if we were going to war with France, the wording would not be “the United States is going to war”, but “the United States are going to war…”

The Declaration clearly calls for the independence of thirteen new nations, not one—“a baker’s dozen of new nations,” as Willmoore Kendall put it, thirteen free and independent states.  What the Declaration meant for the powers of the states was that the states being free and independent, each state had the powers any nation is entitled to, but since God has given man ethical laws in nature and in His laws revealed in Scripture (“the laws of nature and of nature’s God”), no nation and no state is entitled to powers which violate the laws of nature and of nature’s God, nor are the people of any state justified in consenting to any powers that violate the laws of nature and of nature’s God. The Declaration leaves the form of civil government chosen by the people or the representatives of the people of each state up to the representatives and the people of that state. Each must choose for itself a form of government and powers of government which are consistent with preserving the laws of nature and of nature’s God, and thereby preserving the people’s freedom. The people of each state are justified in framing their own particular constitution, civil government institutions, and laws so long as they do not violate the laws of nature and of nature’s God.

The Declaration of Independence was both produced by the states and produced the states.  The colonies’ (then states’) representatives in the Continental Congress produced it.  It is a tremendously important but often misinterpreted document.  There was not a government of the thirteen united States. The Continental Congresses did not have the authority to require the states to do anything; the respective states’ legislatures had to decide whether to act on the recommendations of the Continental Congress. The Continental Congress was based upon the equality of all states, not upon the will of the majority of the people who live in all those states. There was no vote of the people of the States and no attempt to determine the majority will of the people who lived in those thirteen states. The Declaration was unanimous because the representatives of the people of each state agreed upon it, not because the majority, or all of the people, of all the states agreed to it.

Colonists started talking about independence in 1774, but no original powers of legislation were granted to the Congresses of 1774 and 1775. The government was temporary only; it was permitted only for a particular and temporary object, and the States could at any time recall any and every power which it had assumed. Nothing in the powers employed by the revolutionary government, as far as can be seen from its acts, is inconsistent with the sovereignty and independence of the States. Regarding external relations, Congress seemed to have exercised every power of a supreme government. They declared war; formed alliances and made treaties; contracted debts and issued bills of credit. These powers were not “exclusive” though. The colonies raised troops, commissioned vessels of war, and conducted military operations. In conducting the war Congress had no “exclusive” power, and the States retained, and asserted, their own sovereign right and power to do that. Congress exercised no power reducing the absolute sovereignty and independence of the States.  Many powers entrusted exclusively to Congress could not be effectively exercised except by the aid of the State governments. The States raised troops required by Congress. Congress was allowed to issue bills of credit, but not make them a legal tender. Nor could it require the States to redeem them, nor raise by its own authority the necessary funds for the purpose. In these and other important functions, the “sovereignty” of the Federal Government was merely nominal; its efficiency was wholly due to the co-operation of the State governments. The relation between the colonies and their Congress did not change once independence was declared. The chief difference was that the relation was now between the States and their Congress.[1]

Although the powers actually assumed and exercised by Congress were very great, they were not always allowed by the States. Thus, the power to lay an embargo was earnestly desired by Congress, but was denied by the States.[2] The Continental Congress was not a central government of the newly independent States.

There was no central government until the Articles of Confederation in 1781—five years after the colonies issued the Declaration. Even under the Articles of Confederation, it was clear that the states were intended to have the vast majority of civil government power. Article II (of the Articles) clearly stated that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

Article III established the United States as a league of states that emphasized the right of each state to govern its own internal affairs. It was “a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare…” The purpose of the Confederation was clearly defensive. It was deliberately left for each state to determine for itself how to order its own internal affairs.

Article VI limited the powers of the central government. Centralized power is incompatible with federalism and a confederate form of government. The power must be spread out and limited.

Article VII authorized state control of military ranks. The federal army was to be a very small standing army, supplied by the state militias.

Article VIII. Each state’s taxes were to be determined by the legislature of that state—not by the central government.

Article IX declared what the rights of the central government were. It meant that each state was a sovereign nation that had to be considered in forming any common governmental system for the peoples of the states to live under. The primary powers the central government had under the Articles were to declare war against foreign powers; establish standard weights and measures; mint coins and print currency; and serve as a mediator in all disputes between the states.

The Articles of Confederation was our first national constitution. The newly independent states created it because they recognized their weakness compared to European nations—and wanted to be able to defend themselves against attempts by other nations to conquer them.  They made their first constitution a confederacy because they wanted to continue to rule their own internal affairs, but still be able to join with the other states to defend against foreign aggression—based on religion or any other causes.

Although it was not ratified until March 1781, it was given to Congress in November of 1777, and it was essentially the structure of government that the United States operated under all through the War of Independence. In 1779, the Continental Congress passed a resolution acknowledging the operating status of the Articles prior to its being fully ratified by the states in 1781.[3]

The states declared their independence in order to be and remain independent, self-governing states. Their Declaration of Independence is neither our fundamental governing document nor the controlling authority for American civil government, law, and politics.  It is simply our original states’ declaration of their right to fight for their respective independence from England and of their equal status as free, independent nations. They created the Articles of Confederation to maintain their individual sovereignty, but to provide their united military power. When government under the Articles proved defective, many in the states sought to create a stronger central government; many others feared that the new central government would be too strong. The new governmental system that the colonies established under the Constitution was meant to retain the great majority of governmental power in the respective states, not to centralize power in the new, limited national government, nor to enable future officials in that government to centralize power. Those who advocated ratifying the finished Constitution insisted that the new central government did not and would not be a threat to the powers of the states.

Jennie Jones, Instructor of Government and History, Weatherford College

[1] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge [Joseph] Story’s Commentaries on the Constitution of the United States (New York: Van Evrie, Horton & Co., 1868), Reprinted by St. Thomas Press, Houston, Texas, 1977, p. 64-65

[2] Upshur, p. 66

[3] Dr. George Grant, Ph.D. Lit., King’s Meadow Humanities Curriculum: American Culture, Instructor’s Guide (Franklin, Tennessee: King’s Meadow, 2011). p. 202, 293

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In declaring their independence from the British Empire, “the Representatives of the united States of America” acted “in the Name, and by Authority of the good People of these Colonies.” The “United Colonies are, and of Right ought to be, Free and Independent States.” Plural, not singular. But also united: as one of Mr. Shakespeare’s characters says, there’s the rub. The American States are free and independent respecting Great Britain. But are they free and independent respecting one another? And if so, to what extent? “As Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do,” but may they do these things severally, without regard to each other, or only as a united body? What is the character of the American Union?

Notoriously, Abraham Lincoln and Jefferson Davis later would find themselves in disagreement over this matter. But in the generation between the founding and the Civil War, a slaveholding Southern democrat, and Democrat, delivered a cogent analysis of America’s constitutional Union, promising to enforce the terms of that Union as he understood them. No one doubted that he would; Andrew Jackson was not a man to be crossed.

In 1828, Congress enacted a tariff law, one so sharply resented that South Carolinians, led by John C. Calhoun, called it the “Tariff of Abominations.” Calhoun resigned from the vice presidency and entered the Senate to fight the tariff. By the early 1830s, South Carolina handed Jackson a serious constitutional crisis.

Jackson was far from an enemy of States’ rights. In his First Inaugural Address of March 1829 he had announced that “In such measures as I may be called on to pursue in regard to the rights of the separate States I hope to be animated by a proper respect for those sovereign members of our Union, taking care not to confound the power they have reserved to themselves with those they have granted to the Confederacy”—that is, the federal government. Nine months later, in his First Annual Message, he praised the Framers’ design, which consisted of a federal government with “limited and specific, not general, powers”; “it is our duty,” he continued, “to preserve for it the character intended by its framers.” “We are responsible to our country and to the glorious cause of self-government for the preservation of so great a good.” This being so, “the great mass of legislation relating to our internal affairs was intended to be left where the Federal Convention found it—in the State governments.” He warned Congress “against all encroachments upon the legitimate sphere of State sovereignty.”

Nullification of duly enacted federal laws was another matter, however. As early as the Jefferson Day Dinner in April 1830, Jackson fixed Calhoun with his formidable stare and toasted “Our Federal Union—it must be preserved.” The warning went unheeded; indeed, the nullification movement spread to other Southern states. On November 1, 1832, South Carolina solemnly nullified the tariff law, threatening to secede from the Union if the federal government moved to enforce it. South Carolina, the state legislators intoned, “will forthwith proceed to organize a separate government and to do all other acts and things which sovereign and independent states may of right do”—thus echoing the language of the Declaration of Independence without noticing its underlying principle of unalienable natural rights.

In his Fourth Annual Message of December 1832, by which time he had been duly elected to a second term in office, Jackson reported that “in one quarter of the United States opposition to the revenue laws has arisen to a height which threatens to thwart their execution, if not to endanger the integrity of the Union.” He followed this a few days later with a proclamation refuting Southern pretensions. To claim a constitutional right to nullify federal laws as unconstitutional, “coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws; for as by the theory there is no appeal, the reasons alleged by the State, good or bad, must prevail.” But the Constitution, the supreme law of the land, provides only two appeals from allegedly unconstitutional federal laws: judicial review and constitutional amendment. If the South Carolina doctrine “had been established at an earlier day, the Union would have been dissolved in its infancy.”

Jackson then reviewed the history of the American Union as defined and refined during the Founding period. The Union, he observed, predates not only the Constitution but the Declaration of Independence. In October 1774, the First Continental Congress met in Philadelphia in response to legislation enacted by the British parliament and king. After the Boston Tea Party, Britain aimed to punish Massachusetts by curtailing citizens’ rights—suspending the right to jury trials, among other measures. Calling these the “Intolerable Acts,” the delegates set down the Articles of Association, boycotting British imports (including slaves) and suspending American exports to England. To reinforce these proposals, Congress recommended sumptuary restrictions: no “shows, plays, and other expensive diversions and entertainments,” including horse races and cock fights. These curtailments of consumption would back the restrictions on trade. Congress further proposed the formation of local committees to expose violations of these policies—effectively enforcement by shaming. In Jackson’s words, “they agreed that they would collectively form one nation for the purpose of conducting some certain domestic concern and all foreign relations.”

The Articles of Association amounted to a treaty among the colonies, not a government. Two years later, the Declaration of Independence anticipated redefining the Union on governmental lines. Describing Americans as “one People,” the Signers announced that the United States were ready “to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.” All independent peoples are entitled to such a “station” or status because “all Men are created equal”—”endowed by their Creator with certain unalienable Rights,” among which number “Life, Liberty, and the Pursuit of Happiness.” If a group of such equal persons consent to a government that does what governments rightly do—aiming to secure those rights—then they deserve diplomatic recognition from other peoples so organized. Conversely, governments that fail to secure those rights forfeit that consent. The long list of grievances against the British king and parliament that follows provides a sort of photographic negative of justly used governmental powers. These include the power of declaring war, settling peace, domestic legislation, and government by law with an independent judiciary. The abuse of those powers by the British government rightly led to disunion; union, by implication, requires their proper use within the framework of the Laws of Nature and of Nature’s God by the consent of the people.

After vindicating their claim of independence on the battlefield (Jackson had been one of the militiamen, at the age of thirteen), the Americans further defined the terms of their Union with their first constitution, the Articles of Confederation. In Jackson’s words, the states thereby pledged to “abide by the determinations of Congress on all questions which by that Confederation should be submitted to them,” with no state entitled to “legally annul a decision of the Congress or refuse to submit in its execution,” although the Articles provided no means of enforcing this provision. Inasmuch as the 1787 Constitution formed “’a more perfect Union’ than that of the Confederation,” how could that law permit the Union to backslide beyond even the unenforceable Union enacted under the Articles?

“I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” More, “this right to secede”—which Jackson clear-sightedly perceived as inherent in the assertion of the sovereign right to annul—“is deduced [by the nullifiers] from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior.” But Jackson correctly identifies the American people as the sovereigns, not the state or federal governments, and under the Constitution the executive is charged with enforcing federal law. “The Constitution of the United States…forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same.” That government “operates directly on the people individually, not upon the States,” as it had under the Articles.

“It is the acknowledged attribute of free institutions that under them the empire of reason and law is substituted for the power of the sword.” As argued in the Declaration of Independence (and earlier by John Locke and other natural-rights philosophers), it “needs not on the present occasion be denied” that “a State or any other great portion of the people, suffering under long and intolerable oppression and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the Government and appeal to the last resort,” namely, the force of arms. The right to revolution under such circumstances is a right not only of Americans but “a right of mankind.” “It is not the right of the State, but of the individual, and of all the individuals in the State.” “Like any other revolutionary act,” secession “may be morally justified by the extremity of the oppression; but to call it a constitutional right is confounding the meaning of terms,” inasmuch as “a compact is an agreement or binding obligation.” If that compact “contains no sanction, it may be broken with no other consequence than moral guilt,” as a league among independent nations might be broken; “a government, on the contrary, always as a sanction, express or implied, and in our case it is both necessarily implied and expressly given” in the provision made “for punishing acts which obstruct the due administration of its laws.” The name for “an offense against sovereignty” is treason. Jackson charges that the nullifiers’ “object is disunion…. Disunion by armed force is treason,” and Jackson leaves no doubt that he will use his executive power as president of the United States to punish its perpetrators accordingly. Thus Jackson clearly defines popular sovereignty not as a principle justifying the political superiority of the States over the federal government (as nullifiers and secessionists did), nor as a principle justifying might-makes-right majority rule of a nation over the states (as Stephen Douglas would later do), but as an instrument justified only by its adherence to the standard of natural rights. The sovereign people have divided their sovereignty between the States and the general government; accordingly, States’ sovereignty and States’ rights are limited to those objects the united people did not assign to the federal government; the federal government, for its part, is limited to the powers enumerated by the Constitution and ratified by the people. “It is not for territory or state power that our Revolutionary fathers took up arms; it was for individual liberty and the right of self-government.”

In a letter to Congress in January 1833, Jackson warned that “If these measures can not be defeated and overcome by the power conferred by the Constitution on the Federal Government, the Constitution must be considered as incompetent to its own defense, the supremacy of the laws is at an end, and the rights and liberties of the citizens can no longer receive protection from the Government of the Union.” With no major source of revenue other than the tariff, the federal government itself would shrivel and collapse and the states would take over the rule of the people resident within them. Citing the Constitutional obligation of the Executive to “take care that the laws be faithfully executed,” Jackson signed the “Force Bill” on March 3, 1833, the day before his Second Inaugural Address. In the words of his most recent biographer, Bradley S. Birzer, he then “called up militias, ordered three divisions of artillery to South Carolina, gave General Winfield Scott command over Charleston Harbor, ordered the reinforcement of Charleston’s federal forts, and placed naval warships just offshore.” In the Address, he wrote that “The eye of all nations is fixed on our Republic. The event of the existing crisis will be decisive in the opinion of mankind of the practicability of our federal system of government.” Taking notice, South Carolina backed down.

By the time of his Farewell Address four years later, Jackson could assert with confidence, “Our Constitution is no longer a doubtful instrument, and at the end of nearly a half century we find that it has preserved unimpaired the liberties of the people, secured the rights of property, and that our country has improved and is flourishing beyond any former example in the history of nations.” He nonetheless warned, “We behold systematic efforts publicly made to sow the seed of discord between different parts of the United States and to place party divisions directly upon geographical distinctions; to excite the South against the North and the North against the South, and to force into controversy the most delicate and exciting topics—topics upon which it is impossible that a large portion of the Union can ever speak without strong emotion.” Jackson does not deny the wrong of slavery, only that the consequences of disunion would be worse, reintroducing the likelihood of international war to North America without liberating the slaves. Recalling the Farewell Address of his most distinguished predecessor, he asked, “Has the warning voice of Washington been forgotten, or have designs already been formed to sever the Union?”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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American Revolution and Expanding the States – How the American Revolution and nationhood voided the Proclamation Line of 1763, allowing expansion for American settlement of the Western frontier

In 1763, with “the scratch of a pen,” North America had changed forever.[1] After years of looming as an ever-present danger, the French threat had finally been removed from Canada and the lands east of the Mississippi. The territory had been hard won as a result of the 1763 Treaty of Paris that formally ended the French and Indian War waged on the British colonies’ western frontier since 1754. “That Enemy who hath so long stuck like a Thorn in the Sides of our Colonies is removed,” wrote Massachusetts governor Francis Bernard; now “North-America” was “[e]ntirely British.”[2] Native American unrest followed. That same year, the newly crowned King George III, fearful of further rebellion and citing it as “essential to our Interest,” stopped western expansion with a theoretical line on a map that ran through the Appalachian Mountains (which run from modern day Canada to Alabama).[3] The Proclamation of 1763, as it was known, barred Americans from collecting their promised spoils of war, and unknowingly became one of the American Revolution’s earliest causes.

The French and Indian War had been fought globally, but had been ignited in America over disputed lands just west of the Appalachians that the British, French, and Natives each believed to be rightfully their territory. At the center of the outbreak was a twenty-two-year-old Lt. Col. George Washington of the Virginia Militia, whose expedition and skirmish in the area around modern-day Pittsburgh had in part sparked the conflict. Washington was one of many American colonists who would fight for King and Country, but who also hoped to reap the lucrative gains of the frontier.

Peace was supposed to place the land into the waiting hands of American colonists. But as speculators laid claim to millions of acres and settlers migrated to reap the benefits of the rich farmlands of the Ohio Valley, it sparked a rebellion of unified Native American tribes.[4] Known as Pontiac’s Rebellion, the conflagration was ultimately suppressed at great British expense and effort. Hoping to stop an unrestrained colonial rush into the west in order to prevent further Native hostility (and both to retain control over the colonies and trade and to promote settlement in Quebec and Florida), the Proclamation halted American migration and “reserve[d]” the land “under” the King’s “Sovereignty, Protection, and Dominion, for the use of the said Indians.”[5]

Although the Proclamation was virtually unenforceable and was deemed temporary, the royal decree still triggered a sharp backlash and even outward violence from colonists who had invested in western lands, sought to settle, or been denied their promised rewards for military service. From the Mississippi Land Company to the Ohio Company, potential fortunes had been stifled, as land could not formally change hands from the Natives without royal approval and licensing.

Still, colonial resistance to the Proclamation of 1763 went beyond personal economic interests. It was one of the first of many British failings that colonists saw as distancing them from the mother country. The British Army, which was supposed to defend all subjects yet was historically viewed with deep fear by Anglo-Americans, was potentially weaponized to avenge the King’s “Displeasure.”[6] Colonists were limited in their movement, their property rights were hindered, and more substantially promises offered by the Crown had been invalidated. Furthermore, it seemingly protected Native Americans’ interests over the American colonists’. It created “two distinct worlds” whereby any claims to being a subject disappeared west of the line and the military held authority.[7] Colonists, like Washington, pressed their western claims up to and beyond the Revolution’s outbreak. As he complained, regardless of whether the Proclamation was “founded in good, or ill policy,” a promise of land grants had been made to French and Indian War veterans — one that was “to all Intents & purposes considered, as a mutual contract.”[8]

Although the Proclamation wasn’t actively enforced and with the line pushed further west due to the Treaties of Fort Stanwix and Hard Labor in 1768 and the Treaty of Lochaber in 1770 (prompting further speculation), the Second Continental Congress meeting in Philadelphia in 1776 still considered the issue as worthy of inclusion in the Declaration of Independence. For, in the Patriot view, the King “endeavoured to prevent the population of these States,” and “refus[ed]…to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.”[9] In doing so, the Congress acknowledged the Proclamation as being more than just a financial issue; it was a long remembered ideological and governmental grievance.

Twenty years after the 1763 Treaty of Paris opened the frontier to American colonists, the 1783 Treaty of Paris both ended the Revolution and ceded all lands east of the Mississippi River to the United States. Under the Articles of Confederation there was further delay in western expansion by design and conflict over territorial claims between various states.[10] It was under the new U.S. Constitution that additional disputes were resolved, existing state borders formalized and expanded westward, and the remaining lands organized into the Northwest and Southwest Territories, with statehood dependent upon population.[11] Furthermore, Secretary of War Henry Knox attempted to spread American “civilization” to the Native Americans, as he believed it would “most probably be attended with the salutary effect of attaching them to the Interest of the United States.”[12] In 1792, Kentucky entered the United States as the fifteenth state and first in the region formerly barred by the Proclamation of 1763 (Tennessee and Ohio would follow shortly). Although the paper barrier had fallen, tension with the British (as well as the Spanish) and Natives remained, as the land, its culture, and its borders were contested through the War of 1812. Meanwhile, the issue of the expansion or restriction of slavery in the new states simmered for over half a century, before erupting in the Civil War.

Craig Bruce Smith is the author of American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era and an assistant professor of history at William Woods University. For more information: www.craigbrucesmith.com

[1] Colin G. Calloway. The Scratch of a Pen: 1763 and the Transformation of North America. (Oxford, England: Oxford University Press, 2006), p. 14-15.

[2] Ibid.

[3] The Royal Proclamation, Oct. 7, 1763. http://avalon.law.yale.edu/18th_century/proc1763.asp

[4] For economic motivation see: Woody Holton. Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution in Virginia. (Chapel Hill: University of North Carolina Press, 1999).

[5] The Royal Proclamation, Oct. 7, 1763. http://avalon.law.yale.edu/18th_century/proc1763.asp; Jennifer Monroe McCutchen. “Proclamation Line of 1763,” Digital Encyclopedia of George Washington. https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/proclamation-line-of-1763/; Fred Anderson. Crucible of War: The Seven Years’ War and the Fate of Empire in British North America, 1754-1766. (New York: Vintage, 2000), p. 580.

[6] Ibid; Calloway. The Scratch of a Pen, p. 92-93.

[7] Patrick Griffin. American Leviathan: Empire, Nation, and the Revolutionary Frontier. (New York: Hill & Wang, 2007), p. 21; Alan Taylor. American Revolutions. (New York: W.W. Norton and Company, 2016), p. 61; Brendan McConville. The King’s Three Faces: The Rise & Fall of Royal America, 1688-1776. (Chapel Hill: Omohundro, 2006), p. 235.

[8] George Washington to Lord Botetourt, 8 Dec. 1769. Founders Online. https://founders.archives.gov/documents/Washington/02-08-02-0188

[9] The Declaration of Independence. 4 Jul. 1776, https://www.archives.gov/founding-docs/declaration-transcript

[10] Benjamin Harrison to Virginia Delegates, 19 September 1783, footnote 3. https://founders.archives.gov/?q=%22proclamation%20of%201763%22&s=1111311111&sa=&r=65&sr=

[11] US Constitution, 1787, https://www.ourdocuments.gov/doc.php?flash=false&doc=9&page=transcript; Northwest Ordinance, 1787, https://www.ourdocuments.gov/doc.php?flash=false&doc=8&page=transcript;

Southwest Ordinance, 1790

https://constitution.org/uslaw/southwest_ordinance.pdf

[12] Henry Knox to George Washington. 7 July. 1789. Founders Online. https://founders.archives.gov/documents/Washington/05-03-02-0067

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Having founded republican regimes in America, regimes animated by respect for the laws of Nature and of Nature’s God as enunciated in their Declaration of Independence from the British monarchy, the Founders remained vexed at the confederal form of the American state–the relations among the several states in the confederation and the relationship between the weak federal government and those states, relationships framed in the Articles of Confederation. True to its title, The Federalist centrally addresses this question—literally so. James Madison, scribe of the Constitutional Convention and one of the principal designers of the new Constitution itself, wrote the forty-third or central number of the collection, as well as the six preceding essays and the fifteen subsequent. The core of the book belongs to him, and his topic throughout the series is the character of American federalism as the Constitution would now constitute it.

Madison begins by identifying the need to balance government energy with stability, both in defense of liberty—a natural right—and “the republican form”—the regime which emanates from that right. Liberty and the regime of liberty require energy for self-defense and for execution of the laws enacted by the regime; liberty and republicanism also require stability in order establish the “national character” and to fortify the confidence of the people in their new regime. “The task of marking the proper line of partition between the authority of the general and that of the State governments” proved arduous, given the rightful jealousy of the citizens of each state as they guarded their right and power to govern themselves, a jealousy that nonetheless needed to be balanced by considerations of public safety and economic prosperity, threatened by factionalism within and among the states under the Articles of Confederation. Natural rights are one thing, but they can never be secured without due consideration of  “the infirmities and depravities of the human character,” evils that undermine popular governments no less than monarchies and oligarchies.

Madison assures his readers that the form of the “general” or federal government remains “strictly republican.” “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.” Such a government will derive “all its powers directly or indirectly from the great body of the people” and not “from an inconsiderable proportion or a favored class of it.” Each of the three branches of the newly-designed federal government does indeed meet that criterion; they all pass the ‘regime’ test.

But what about the ‘state’ test? Does the federal government possess the needed energy, the requisite power, truly to govern? Without a strong federal union, America will become another Europe, full of small and medium-sized states armed against one another, their liberties “crushed between standing armies and perpetual taxes,” their prosperity shackled by high tariff walls. At the same time, does its structure limit but also focus that energy in a way that does not consolidate the states into one amorphous mass, compromising the rights of citizens to govern their own lives as they really live them—in towns and counties within states? Self-governing citizens must never be reduced to spectators, gazing at the actions of ‘statesmen’ far above and beyond their control.

After reaffirming, in the central, forty-third Federalist, “the great principle of self preservation” and “the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim,” Madison turns to the restrictions of the authorities of the American states enunciated in the new Constitution—restrictions imposed precisely because those states had failed adequately to secure the natural rights identified in the Declaration of Independence and vindicated in the war for independence and the revolution the war advanced. Among other things, the states shall not enter into treaties, coin money, impair the obligation of contracts, or grant the titles of nobility (changing themselves into aristocracies). But would these restrictions weaken the states too much. Of particular concern to critics were the Constitution’s clauses granting the federal government the power “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers to set foreign and domestic policies for the American government as a whole, and the designation of the laws enacted by those powers as “the supreme law of the land.”

There is no way of defining one’s way out of that concern. What are “necessary and proper” laws? And if the “supreme law of the land” isn’t lodged in the general government, where would it be lodged, if not in the states, which had misused their supremacy? In Federalist 45, Madison writes, “Were the plan of the [Constitutional] convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”

Madison then shows how the Framers solved the problem. Although the States were indeed stripped of their sovereign powers—treaty-making, coinage, regime change, and so on—unlike the general government they would form “constituent and essential parts” of that government. By establishing the Electoral College, the Framers required state-by-state election of presidents; each voting district for House of Representatives remained entirely within the boundaries of a state, with no interstate districts; and the United States senators would be elected by state legislatures, with each state sending two senators, regardless of its size.

Further, the administrative or bureaucratic side of government would favor the states. There would be far more state employees than federal employees. This remains true even to this day, with the vastly expanded federal bureaucracy now in place, although of course it is much less true than it was in the first 150 years of American constitutional government. The causes of that shift of power have everything to do with the partial abandonment of our constitutional scruples, beginning in the twentieth century, rather than to the Constitution itself.

Fundamentally, “the powers delegated by the proposed Constitution to the federal government are few and defined,” whereas “those which are to remain in the State governments are numerous and indefinite.” Moreover, the federal government’s powers largely concern external matters; the day-to-day concerns of most citizens—their “lives, liberties, and properties”—will continue to find redress from the local, county, and state governments.

As Madison tough-mindedly remarks in a subsequent paper, the new Constitution puts the states to the test. If the sovereign American people “should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities.” The stronger federal government set down in the new Constitution will inaugurate a kind of competition in good government, breaking the states’ monopolies.

In all this, as Madison writes in the forty-ninth Federalist, the Framers have structured the new federal government and the American system of governments overall in such a way as to secure natural rights while minimizing the infirmities and depravities of the human nature all persons share. Not the passions but the reason of the American public should “sit in judgment” of the government: “It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form,” and so does federalism, rightly understood. If such were not the case, “the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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A recurrent theme during the debates in 1787 and 1788 over adoption of the Constitution was the structural incompatibility of “confederation” with “consolidation.” The latter was the feared absorption of the states into a unitary general government, so that they ceased to be sovereign members of a “union.” As counties or districts were consolidated within a state, so states would be in the United States.

The Articles of Confederation had guarded against that. In addition to laying out a number of substantive powers and the detailed means by which those powers were to be exercised, they carefully delineated the boundary between the states and the Congress: “Each state retains its sovereignty…, and every Power [sic]…, which is not by this confederation expressly delegated to the United States, in Congress assembled.” Moreover, under the Articles, Congress acted as a true “federal head” on the corpus of the states. Not only did the states have equal voting rights, but Congress acted on the states, not on the citizens directly. The last was the constitutional role of the state legislatures. Thus, under Article VIII of the Confederation, all charges assessed by Congress were to be paid by the states in prescribed proportion, and the “taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states ….”

By contrast, the new Constitution allowed Congress to bypass the state legislatures and act directly on the people through the powers laid out in Article I, Section 8, including the power to control its own sources of revenue by taxation. More ominously, clause 18 of that section gave Congress the power to make all laws “necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” If that were not enough, Article VI of that document declared that, among other types of law, the statutes of Congress would be the supreme law of the land, and thereby override any state laws that Congress might deem contrary to the exercise of its own powers.

Both the “sweeping” or “elastic” clause (the aforementioned “necessary and proper clause”) and the “supremacy clause” drew the alarm of the Constitution’s opponents. Jefferson, writing to Senator Edward Livingston in 1800, illustrated their concerns, which had not disappeared with the document’s adoption. Congress had recently chartered a mining company.  Jefferson sarcastically compared this action to a popular nursery rhyme: “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’?”

Even the preamble of the Constitution drew criticism. In passionate speeches to the Virginia ratifying convention in June, 1788, Patrick Henry drew a stark distinction: Had the preamble spoken of “we [sic] the States,” it would have been a confederation. Rather, it spoke of “We, the people, instead of the States of America,” a clear designation of a consolidated government. Henry saw that type of government as a grave threat to basic liberty. He specifically cited the “relinquishment of the trial by jury, and the liberty of the press” as well as threats to the states’ maintenance of their militias.

Attacking from another direction, he denounced Congress’s new power to tax the people directly, another feature of consolidated government, which replaced the Confederation’s system of assessments collected by the states for the federal head. In colorful language, he described the pathology of the new system: “In this scheme of energetic Government, the people will find two sets of tax-gatherers–the State and the Federal Sheriffs….The Federal Sheriff may…ruin you with impunity….Have you any sufficient decided means of preventing him from sucking your blood by speculations, commissions, and fees? Thus thousands of your people will be most shamefully robbed: Our State Sheriffs, those unfeeling blood-suckers, have, under the watchful eye of our Legislature, committed the most horrid and barbarous ravages on our people ….If Sheriffs thus immediately under the eye of our State Legislature and Judiciary, have dared to commit these outrages, what would they not have done if their masters had been at Philadelphia or New York?”

Henry charged, the defenders of the Constitution also were mistaken when they asserted that the federal and state governments would exercise their respective powers as in a “parallel line,” with each confined to its proper objects. Rather, there was no clear line drawn generally in the Constitution between the two levels of government. Even when a specific line was drawn, no mechanism existed to prevent one sovereignty from encroaching on the other. Inevitably, Henry argued, the more powerful general government must necessarily subvert the state governments. Hence, the “necessity of a Bill of Rights appear [sic] to me to be greater in this Government, than ever it was in any Government before.” Indeed, Henry rhetorically preferred the English structure, with its Bill of Rights to limit the King, to the proposed American Constitution that lacked such a document.

The structure of checks and balances among the branches of government and the split sovereignty of the Constitution’s version of federalism were, as Madison and other supporters had insisted, the bulwark to constrain the general government and to protect the people’s rights against arbitrary power. Henry represented the views of many in the various state conventions and, indeed, in the Philadelphia drafting convention, that their plasticity and permeability made such political measures insufficient. Henry’s fellow-Virginian, George Mason, instrumental in forming the Constitution in Philadelphia, left that convention before the final vote, due to that body’s refusal to include a bill of rights. Several other delegates departed for similar reasons. These critics insisted that a firm and clear enumeration of limits on the general government was needed, just as Virginia and some other states had in their own constitutions.

The objections voiced by Henry and others in the several state conventions, caused many of those bodies to submit lists of proposed amendments to the Constitution along with their votes to approve the charter itself. Consistently, these proposals sought to establish a clear line between the two sovereignties’ legislative powers. However, a nuanced, but substantively essential, difference in the language emerged between submissions from states that approved the Constitution early, contrasted with actions by later conventions. Between December 12, 1787, and June 21, 1788, the proposals from Pennsylvania, Massachusetts, Maryland, South Carolina, and New Hampshire, all contained variations on the following language: “That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several states to be by them exercised.” [Emphasis added.] (Massachusetts). That formulation approximated that in the Articles of Confederation. Thereafter, the three states that sent such proposals framed them without the word “expressly.”

The verbal difference illustrated a shift in the federal nature of the two sovereignties and was clearly understood. This shift was reflected in Madison’s language in what became the Tenth Amendment. His initial proposal in the First Congress read, “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively.” When an amendment to this language was proposed on the floor of the House to insert “expressly” [delegated], Madison referred to the extensive debate in the Virginia convention. There, he had opposed such an addition as inconsistent with the structural change in the respective constitutional positions of the states and the general government in the new Constitution. He saw the proposed change to his draft as returning the government to the Articles of Confederation. Madison prevailed; the eventual Tenth Amendment did not include this critical adverb. Years later, in McCulloch v. Maryland, Chief Justice Marshall used this textual difference between the two charters to demonstrate the shift in sovereignty and to sustain his broad reading of the general government’s legislative powers.

Still, it would be historically incorrect to say that the principal objective of the Bill of Rights was to protect the states’ power to legislate. Rather, as reflected in the first eight amendments, the objective was to protect expressly the rights of the people from intrusion by the general government into their liberty. Even Henry spent considerable oratory emphasizing the threat the general government posed directly to the rights of the people. If it was necessary for the people’s liberty to have clear limitations against the state government in the Virginia constitution, how much more were they required against the general government?

The Bill of Rights only applied to the general government, not the states, as the Supreme Court affirmed in 1833, in Barron v. City of Baltimore. Protection of state authority to legislate was, to be sure, an incidental aspect of the project. For example, the First Amendment’s Establishment Clause sheltered the continued existence of established state churches. As well, the Second Amendment protected the states’ ability to sustain a militia in the event the federal government used its powers to frustrate the formal state governments’ control over that body. But that amendment did so by recognizing the right of the people, individually, to keep and bear arms, and to organize themselves into militias outside the corporate state governments, if needed.

Moreover, to the extent that the Bill of Rights protected the states’ legislative powers, this was not an unalloyed blessing for individuals. For example, Thomas Jefferson and other Republicans of the time denounced John Adams and the Federalist Party for passage of the Sedition Act of 1798. They claimed the statute violated the First Amendment and exceeded Congress’s legislative powers. At the same time, Jefferson encouraged his political allies in states that they controlled to prosecute Federalist editors under state anti-sedition laws. It was not until the Supreme Court in the 20th century began to incorporate Bill of Rights protections into the due process clause of the Fourteenth Amendment and apply them to the states, that states were prevented from curtailing individual rights beyond what the federal government could do.

Unfortunately, the fears of Henry and other skeptics about the reach of federal power and the erosion of state sovereignty have come true. From a constitutional perspective, the Tenth Amendment is a shadow of what it represented at the time of the ratification debates. If Congress acts directly on individuals under the broad reach of the commerce power, the Tenth Amendment is no real barrier. Only if Congress, instead of legislating directly, seeks to “commandeer” the states into adopting federal policies or administering federal laws is there a violation of the states’ residual sovereignty. Even that obstacle is easily evaded, if Congress attaches the states’ compliance with prescribed federal policies as a condition of receiving federal funds. Yet, as the American people have come to experience, states and localities still legislate vigorously, much more than during the Republic’s early years despite the erosion of their constitutional sovereignty. However, their ability to do so is primarily a function of practicality. It is simply too inefficient to have most local matters administered by federal officers and bureaucrats.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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“Federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”   – Justice Sandra Day O’Connor in Coleman v. Thompson (1991)

There is a beauty in our structure of governance—a structure as carefully engineered as a Greek temple or medieval cathedral, and likewise meant to stand for centuries. In our federalist system, the branches and levels of our government are separate yet intertwined, both opposing and relying on one another to create a system that is both strong and delicate.

But like those engineered structures of old, whose beauty and durability can be compromised by misunderstanding and neglect, the same holds true for the support beams undergirding our republic.  A failure to appreciate their role, a misguided effort to subvert their role, and the whole structure, the whole republic collapses.  Most importantly, undo the various institutions of federalism (either through affirmative effort or neglect), and the republic decays and ultimately dies.

The body of the Bill of Rights represents an enumeration of further constraints on federal power, starting with the phrase, “Congress shall make no law…”.  Given that the Constitution itself is an accounting of the full measure of the federal government’s power—the entire breadth of that power, with nothing more left to speculation, the Founders wanted to ensure that people understood that there were further constraints within those powers granted—starting with very specific enumerated constraints and ending with two very broad declarations of the power of individuals and other levels of government:  the 9th Amendment, which makes it clear that simply because some rights were discussed in the Bill of Rights that this does not mean that other rights exist (rights are innumerable. Governmental power is finite); and the 10th Amendment, which makes the broad, but essential, declaration that all that is not surrendered to the government is retained, and that individual rights are protected by the diffusion of power our federalist system operates under.

The Founders were skeptical of concentrated power—whether that power was concentrated in a central, federal government or concentrated in a particular branch of that government.  Concentrated power, as history had taught them (and, for the Founders, we’re talking both classical and proximate history) was apt to be abused—tyrants from Caesar to King George V had taken root because power had been concentrated in some central body.

But as invariably happens, because what is past is prologue and those who fail to learn history are doomed to repeat it, over time these already-precariously balanced institutions become threatened by those who want to see them undone—those who care little for individual rights, but, because of their own parochial interests, wish to see the power of government increased and concentrated.

One of the surest ways to minimize government intrusion into individual rights is to make government bodies as accountable as possible and practicable—and this meant, to the Founders, to leave as much of the day-to-day interaction between people and their government to be at a level closest to the people, with federal power constrained to dealing with issues of national defense and ensuring the free-flow of commerce between the states.

In fact, it was via this Commerce Clause power that the federal government began its expansion into spheres traditionally reserved to states and localities—with the predictably disastrous results.  In 1935 and 1936, as the nation was grappling with the Great Depression, the Supreme Court issued two decisions invalidating key elements of President Franklin Delano Roosevelt’s New Deal agenda as being violative of the Commerce Clause.  Frustrated with the Supreme Court’s adherence to basic principles of federalism, FDR then, essentially, threatened the Supreme Court with a “court packing” scheme in which he would appoint a new justice to balance any justice over the age of 70.

This would have enlarged the court to 15 members, and acquiescing to the president’s pressure, the court began ruling in favor of the New Deal by using a new interpretation of the Commerce Clause that essentially left the government with limitless power, allowing legislators and government bureaucrats to use the most marginal of “interstate commerce” nexuses to justify the constitutionality of a law: things like a “glancing goose” theory to justify the federal regulations governing local wetlands (the idea being that a goose, flying from state to state, might “glance down” at a wetland and want to land, thus justifying federal control).

The effect is that citizens lose the ability to effectively hold government accountable and assert their rights, since it becomes difficult to “push back” against ever-expanding federal control.  Whereas, when a county or state wants to regulate a wetland in someone’s backyard, a property owner can go to a county council or to their state capitol to find a remedy.  But if a citizen wants to push back against the US Environmental Protection Agency (or the US Army Corps of Engineers, which also regulates wetlands), it becomes nearly impossible—requiring legions of lawyers with federal expertise, a limitless bank account, and the patience of a saint.

But most-important, instances like this are illustrative of the interest the founders had in limiting federal government power because of the implications to individual rights.  In this instance, we’re talking about the right to hold and enjoy private property.

It took nearly sixty years for the Supreme Court to finally find limitations to the federal government’s power under the Commerce Clause, and to re-assert the Tenth Amendment.  From 1992 onward, the Supreme Court issued a series of decisions demonstrating the importance of federalism in the protection of individual rights (and the powers of states and local governments).  Even the so-called “glancing goose” theory was finally rejected and the federal government’s power to regulate “isolated” wetlands was struck down.

But other threats to federalism remain—and the nation must guard itself against those threats, especially those undertaken in the name of greater “democracy”.  We are not a “democracy”—federalism makes that manifest.  Yet beyond the expansive interpretation of the Commerce Clause, other efforts have sought to undermine these republican institutions.  The ratification of the 17th Amendment, which took power out of the hands of state legislators with regards to the appointment of senators to the United States Senate was an early example.

Done in the name of encouraging popular democracy, the 17th Amendment has had devastating results in terms of accountability. Senators are less accountable.  Whereas before, they would have to report, regularly, to elected officials who served at a level closer to their constituents, now these senators are only accountable once every six years when they stand for election.

Despite this undermining of federalism, there are those who want to see this eroded even more!  Efforts to change the apportionment of the Senate so that it more-closely resembles the U.S. House of Representatives would completely undo the very protections to individual rights envisioned by having two different houses of Congress in which membership is determined in different ways.  The founders did not want the most-populous states to be able to dictate policy to the least-populous states (not without great protections for the citizens of those states).

Worst of all, efforts to undermine the Electoral College would essentially bring the republic to an end as we know it.  The Electoral College exists as a testament to these federalist principles – acting as a check against democratic impulses that can turn a civil society into mob rule.  The values and interests of rural and agrarian Americans differ greatly from the values and interests of Americans who live in cities.  This has been true since before the American founding and it remains true to this day.

This is why the founders created the Electoral College as the best system for electing a President—to balance the interests between these rural and urban Americans and ensure that a President cannot be elected from the most-populated states with a view towards holding the rights of rural Americans to a second-class status.

Whether it is an effort to remove the Electoral College via amending the Constitution or side-stepping the Constitution’s precepts through interstate compact, the end-result is the same:  the collapse of our federalist system, and another affront to the protections of the 10th Amendment.

Our founders created a structure of government that is both delicate and complex.  But that delicate complexity, like the construction of monuments of old, has a strength that can stand the test of time.  We have to guard ourselves against the destruction of that system—whether through willful subversion or ignorant neglect.

Regardless, in the end, the result is the same.

Andrew Langer is President of the Institute for Liberty, and Host of the Andrew Langer Show on WBAL in Baltimore.

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The Constitution establishes a dual governmental structure consisting of state and national governments.  Although its purpose was to create a strong national government, the Constitution also sought to preserve the independent integrity of the states.  This bifurcated system of power was codified in the Tenth Amendment, which divides sovereign power between those delegated to the federal government and those reserved to the states.  The Tenth Amendment prohibits the national government from exercising undelegated powers that will infringe on the lawmaking autonomy of the states.

The framers believed that by protecting the pre-existing structure of state governments the Constitution could safely grant power to the national government, since the former would independently monitor the latter’s exercise of power.  Similar to the way in which the colonial governments had mobilized opposition to oppressive acts by Parliament, the state governments would serve as vigilant watchdogs against abuses committed by the federal government.

The doctrine of federalism refers to the sharing of power between two different levels of government, each representing the same people.  The founding generation was so committed to federalism that even a nationalist like Justice Marshall acknowledged in McCulloch v. Maryland that the national government was “one of enumerated powers” and could “exercise only the powers granted to it.”  Indeed, federalism concerns were so important to the Founders that nearly all the arguments opposing the new constitution involved the threat to state sovereignty.

Although there is no single ‘federalism’ clause in the Constitution, the Tenth and Eleventh Amendments are often the focus of the Court’s federalism decisions.  In the constitutional scheme, federalism provides an avenue for local self-determination, in addition to a vertical check on government oppression, with the states serving as a localized control on the centralized national government.  Under the framers’ view of federalism, as expressed in the Tenth Amendment, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the restraint of interstate competition from other states.

Because the framers took for granted the sovereign powers of the states, the Constitution is somewhat one-sided in its references to governmental authority.  It explicitly lists the powers of the federal government; but to the extent it defines state powers, it does so primarily through negative implication, by setting out the limited constraints on those powers.  Furthermore, the Tenth Amendment, though not granting power to any governmental entity, recognizes that any and all powers not granted to the federal government have been reserved to the states.

During the nineteenth century and throughout the early twentieth, the Court adhered to a federalist vision, under which it often used the Tenth Amendment to limit federal power.  But after 1937, the Court switched positions, adopting a nationalist model.  In the wake of the New Deal, the expansion of federal powers increasingly eroded the Tenth Amendment protections, and the Court from 1937 to roughly the 1990s largely ignored the Tenth Amendment.  During that time, only one federal law was held to violate the Tenth Amendment.

The year 1937 is seen as a transformational year in the Court’s approach to the exertion of national power; in that year, President Roosevelt sent to Congress a bill that would authorize him to appoint one new Supreme Court justice for each sitting justice who had served ten years or more and had not retired within six months after his seventieth birthday.  Under this ‘court-packing’ plan, the number of Supreme Court justices was to be raised to fifteen.  Whether the Court was influenced by this bill and its likely passage cannot be known for sure; but shortly thereafter, the Court began upholding New Deal legislation of the kind that had previously been struck down.  Initiating a new era of constitutional interpretation, the Supreme Court endorsed a permanent enlargement in the scope of federal power, at the expense of the states.  Under this relaxed posture toward congressional power, the Court would later uphold a wide range of statutes over the next fifty years, including purely local incidents of loan sharking.

After almost sixty years of dormancy, federalism made a constitutional comeback in the 1990s.  In its federalism revolution, the Rehnquist Court reinvigorated the doctrine of federalism and restored power to the states.  Under the Court, there occurred a slow but steady trend towards curbing the power of the federal government and using the Tenth Amendment to safeguard the states from overreaching by the federal government.

This revival of federalism, one of the country’s most basic constitutional arrangements, became the hallmark identity and achievement of the Rehnquist Court.  And this federalism revolution, which fostered a new respect for the sovereignty of the states, also revived the Tenth Amendment as a limit on congressional power.

The Tenth Amendment continues to be a constitutional force and was instrumental in National Federation of Independent Business v. Sebelius (2012), the Supreme Court’s noteworthy decision on the Affordable Care Act preserving state autonomy.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Federalism is an intrinsically American governing principle whose relevance has increased with the nation’s geographical expansion. It sprang from our Founding Fathers’ unwavering commitment to liberty and their sober conviction that without strong safeguards, power would inevitably migrate to the national government and inexorably erode the rights of the governed. With the goal of preserving freedom by preventing the consolidation of control in any one political structure, the Founders came together to draft the U.S. Constitution. Mindful and somewhat humbled by the failure of the Articles of Confederation, they understood that a central authority was necessary to provide for the common defense and general welfare – and most important of all – to protect the liberty for which they had fought so hard. However, they also recognized that giving the federal government unchecked power would likely lead to a tyranny not so very different than the one they had just overthrown.

The Founding Fathers also recognized that government closest to the people being governed was the most just and effective. Compared to the original 13 states, the country has become remarkably vast and diverse lending even greater credence to this ideal. Local authorities understand conditions in their states better than a federal agency that might be located three time zones away. State governments are nimble enough to implement good policies more rapidly than a federal bureaucracy, and it is easier to hold local law and policy makers accountable for poor decisions. As Alexander Hamilton explained in Federalist no. 17, “It is a known fact in human nature that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State are apt to feel a stronger bias towards their local governments than towards the government of the Union.”

And whether the Founders foresaw it or not, federalism created a fertile environment for policy innovation to flourish. The states have the freedom to craft solutions to problems unique to their locale without having to petition the federal government for permission to address an issue that might only have resonance in one part of the country. Federalism empowers states to develop policies that, if effective, can be shared to solve common problems. Damaging ideas can be discarded before being widely implemented. More than 130 years after the Founding Fathers drafted the U.S. Constitution, Justice Louis Brandeis in New State Ice Co. v. Liebmann observed that a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The freedom to innovate also serves as a crucial political safety valve for Americans who feel powerless in the face of federal dysfunction or a federal government that they believe fails to address their concerns. Federalism helped shape the nation we have become and continues to exert a strong influence on American society today.

For the Constitutional Framers, success in Philadelphia would require striking just the right balance of power between competing governing entities. Their solution was an ingenious design that gave the federal government the authority that it needed to unite the nation while devising a system of internal and external checks to diffuse power so that the national government would ultimately be subject to the will of the states and the people. Internal checks and balances were incorporated giving the three branches of the federal government the ability to check each other so that none of them could consolidate too much power. Then the Constitutional Framers established that the states would be co-equal and as such could act as an external check on the national government. This external check, referred to by Alexander Hamilton as the “double security” heralded the arrival of the “compound republic.” Their constitutional equality empowered and even compelled the states to rein in a federal government that overstepped its bounds.

America’s Founders envisioned the states as co-equal partners with the federal government and included constitutional provisions devised to undergird the states’ sovereignty and ensure that no state would be rendered powerless due to population or geographical size. Every state is represented in the U.S. Senate by two senators giving each an equal voice irrespective of population or geographical size. Before the adoption of the 17th Amendment which provided for direct election of U.S. Senators, they were selected by state legislatures underscoring the significance of state legislative bodies to the Constitutional Framers. The Founding Fathers also put the states on equal footing in proposing amendments to the newly-drafted Constitution. Either two-thirds of both houses of Congress or applications from two-thirds of the state legislatures is required to propose a constitutional amendment. Ratification authority over proposed amendments devolves to the states. The Constitution enumerates what governing responsibilities fall to the federal government and in which branch of government authority resides. And as if to ensure that there would be no misunderstanding that the states would serve as its partners, not its subjects, the Tenth Amendment explicitly states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.” James Madison sums the concept up perfectly in Federalist 45 – “The powers delegated to the Federal Government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

Almost from the beginning, federalism faced strains which intensified during the 20th and first years of the 21st century as it became associated with restrictions on the very liberties it was created to protect. This led progressives to abandon state sovereignty. During the same period, the United States’ focus turned increasingly global with more policies legitimately decided at the federal level. Further erosion occurred due to a decline in civic literacy resulting in many Americans mistaking federalism for its opposite – concentration of power in the national government – as well as to the states’ failure to heed Founding Father John Dickinson’s warning, “It will be their own faults, if the several states suffer the federal sovereignty to interfere in the things of their respective jurisdictions.” These are the factors that caused a great governing principle to gain a reputation for being a relic of a bygone era. The states started accepting laws, regulations and executive orders without challenging their constitutionality. The reward for the states’ obeisance was federal dollars coopting them in order to solidify their dependence on the federal government. Without protest, the states exchanged their co-equal status with the national government for one of subservience. It happened just as James Madison foresaw when he observed, “There are more instances of abridgement of freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”

Federalism is experiencing a renaissance! This rebirth began quietly in the 1980s when then President Ronald Reagan issued Executive Order 12612 to restore the division of governmental responsibilities between national and state governments. The Order was ultimately rescinded by Clinton in the following decade. However, the conviction that federalism might hold the keys to address dysfunction in federal institutions continued to grow in popularity. Americans noticed the sharp contrast between state functionality and federal dysfunction and distrust of Washington, DC reached historically high levels. According to the Pew Research Center, only 18 percent of Americans trust the federal government to do what is right “just about always” (3%) or “most of the time” (15%).

Contributing to federalism’s resurgence is its “rediscovery” by Americans on the Left who view federalism as a tool to advance progressive policies – especially on environmental and immigration issues. State sovereignty is once again being recognized for what it is and always has been – a governing principle that transcends political affiliation and was endowed by the Founders to future Americans as a mechanism to preserve freedom.

Federalism is a founding and defining principle of my organization – the American Legislative Exchange Council (ALEC). ALEC is America’s largest, nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism, and state lawmaker members of ALEC have been leaders in pushing back against federal encroachment into matters better handled by the states. Several state legislatures have established Commissions on Federalism to evaluate and review any federal law that could potentially violate the state’s sovereignty. ALEC has adopted model policy to create such commissions as well as model policy that encourages the states to unite to evaluate examples of federal overreach. The model policy can be accessed here. However, state lawmakers need education in federalism in order to recognize federal infringement of state sovereignty. To help solve this problem, ALEC has adopted model policy calling for the continuing education for state lawmakers in federalism. Because it is imperative that attorneys who represent separate and independent sovereign states and their subdivisions have a clear understanding of the jurisdiction and authority of the states as well as the fundamental principles of federalism, ALEC has adopted model policy calling for federalism education for public attorneys. These model policies can be accessed here and here. Prioritizing the teaching of constitutional principles, including federalism, in schools would improve America’s civic literacy and engagement. Thomas Jefferson, recognizing the future need to protect the United States’ political heritage, prescribed a general education for all Americans, “to instruct the mass of our citizens in these their rights, interests, and duties, as men and citizens.” ALEC model policy to put Jefferson’s words into action can be accessed here.

When understood and practiced, federalism gives rise to dynamic political activity. Regulatory reform, an excellent example of federalism in action, is entering a critical juncture at the federal and state level.  Federalism plays a unique role in regulatory reform especially with technology, financial regulation, and affordable housing issue areas. The emphasis is placed on accountability, problem solving and economic theory to reduce risk and increase freedom rather than compounding risk and imposing regressive effects on families and small businesses. While Executive Order 13771 Reducing Regulation and Controlling Regulatory Costs has reduced the rate of regulatory accumulation, progress is uneven across agencies. Regulatory reform legislation remains stalled in the Senate, and the policy focus in the U.S. House of Representatives is likely to shift to oversight activities to undermine efforts to reduce regulatory complexity with the introduction of legislation that emphasizes additive rulemaking.

There has been a growing trend for states to pursue some form of regulatory reform, and states with a few years of experience of regulatory review are near the end of picking the “low hanging fruit.” Those states are grappling with questions on how to make regulatory fixes permanent and how to improve complex and engrained regulatory programs more effectively.

Canada has much to share with the states on effective regulatory reform which is proceeding rapidly at the provincial level.  There is a unique opportunity to inform the eight states and two provinces in the Great Lakes region about the effectiveness of a regulatory reform effort based on the British Columbia model and economic analysis and to demonstrate the benefits for economic development and trade with a regional analysis. If successful, this model can be replicated in other regions.

Although Article V of the U.S. Constitution describes pathways to propose amendments to the U.S. Constitution for both Congress and the states, only Congress has exercised this power. The Founding Fathers included an amendment process for the states anticipating a time when Congress might become the problem rather than a source of solutions to the country’s problems. When two-thirds of state legislatures submit applications to Congress, Congress is compelled to call a convention of states to consider and potentially propose a constitutional amendment. The convention has the same power that Congress does to introduce an amendment, and like a Congressionally-proposed amendment, one that results from a convention of states, would still require ratification by three-fourths of the states before being incorporated into the U.S. Constitution. Current applications address a wide array of topics, including a federal balanced budget amendment, Congressional term limits, campaign finance and regulatory reform, and some applications are open calls for a convention of states without a specific topic to be considered. Although none of the state-driven Article V initiatives have breached the 34-state threshold, some are closing in on this benchmark. Proposing amendments is a potent tool that states can use to rein in federal overreach. More information about the Article V process can be found here.

We are entering an era of renewed appreciation for federalism. National priorities that were once seen as universally held are now characterized by partisan bickering, and while Congress is trapped in an endless loop of gridlock, our nation’s challenges, including our national debt, are quickly becoming existential threats. As distrust in the federal government grows and policies advanced in Washington, DC with little or no input from outside the Beltway fail, more and more Americans are looking to the states for solutions to their most intractable problems. People on both sides of the aisle are acknowledging the states’ potential for policy leadership and innovation, just as our Founding Fathers intended. However, in order to retain the power granted them in the Constitution, the states must steadfastly assert their authority. In a 1791 letter to former Virginia State Senator Archibald Stuart, Thomas Jefferson wrote, “It is important to strengthen the State governments … it must be done by the states themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government.” It’s time for states to hold Jefferson’s “constitutional line” – the nation will be better for it.

Lisa B. Nelson is CEO of the American Legislative Exchange Council, the nation’s largest and oldest voluntary membership organization of state legislators focused on limited government, free markets and federalism. Karla Jones directs the Center to Restore the Balance of Government—the ALEC Center on federalism. Learn more about federalism, ALEC and policies that increase freedom at www.ALEC.org

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