Framing Early State Constitutions and Developing a Republican Form of Government, Under Threat of Battle

The federal, or United States Constitution, drafted during a hot summer in Philadelphia in 1787 was not the only constitution written in that time period, nor was it the first. Earlier, as the former American colonies became newly formed states, they adopted new constitutions that would later influence other states and even the form of the federal Constitution. These documents became the first statements of how republican government would be framed and put into practice.[1] According to Akhil Reed Amar, within these constitutions were “certain overarching elements that are now so commonplace that we forget how truly revolutionary they were in 1776: writtenness, concision, replicability, rights declaration, democratic pedigree, republican structure, and amendability.”[2]

Most of the new constitutions roughly resembled the colonial charters that they replaced. Connecticut and Rhode Island even retained their colonial charters with only minor modification. But some states began a serious effort to craft their own, unique constitutions which would both empower and constrain state government as well as protect the rights and liberties of their people. New Hampshire drafted its constitution even before independence was declared, and several others followed suit while the revolution was being fought.[3]

Many of those early state constitutions were hastily drafted under adverse conditions. The threat of approaching British troops forced some constitutional conventions to adjourn and reconvene multiple times.   Some states’ constitutional framers were not completely convinced that the revolution would be successful.[4] According to Article 26 of New Jersey’s constitution of 1776, “if Reconciliation between Great Britain and these Colonies should take place, and the latter be again taken under the Protection and Government of the Crown of Great Britain, this Charter shall be null and void, otherwise to remain firm and inviolable.”

There were certain commonalities in the various constitutions, but a number of unique features in particular states. All states provided for some separation of powers which would become a distinctive feature of both state and federal governments. Most states provided for a fairly weak executive, although in many respects the chief executive, almost always referred to as a governor, was more powerful than any executive in the national government under the Articles of Confederation. Many states did not provide for a veto for their governor, and some gave veto authority to a plural body, sometimes called a council of censors.[5]

Most state legislatures were bicameral, although both Pennsylvania and Georgia established a single chamber in their initial constitutions.   There were usually property requirements to hold office in the legislature, with stricter requirements for members of the upper chamber. The lower chambers’ members were directly elected by the voters. This was usually the case for the members of the upper chamber, which today in every state is called a senate, but in Maryland the senators were chosen indirectly with voters selecting electors who would then select the members of the senate. A few states later adopted this method, and a few for a short time used electors to select their governor.   Direct election of the governor was established in only five of the original thirteen states’ initial constitutions. In the remaining states, the legislature would select the chief executive.[6] Under the initial state constitutions, judges were either appointed by the legislatures or by the governor with approval of the legislature or at least the senate. The legislature was generally permitted to change the compensation of judges at will, thus diminishing the courts’ reputations for independence.[7]

The terms for almost all offices in the early constitutions were very short. With one exception, all states limited the length of lower legislative house members’ terms to one year. South Carolina had two-year terms. Most states’ senators served terms of one or two years, as did most governors and many judges. These brief terms were a primary check on the behavior of public officials.[8]

The early state constitutions established suffrage requirements for state voters. Most states required property holding requirements, but those varied dramatically from state to state. Property requirements might also vary for the electors of different offices. To vote in elections for the lower legislative chamber, Pennsylvania and North Carolina offered the franchise to all freemen who paid taxes. To vote for members of the state senate, North Carolina required ownership of fifty acres of land. New Hampshire imposed a poll tax. New Jersey had a minimum property requirement of fifty pounds value that applied to suffrage for all state office.[9] These voter qualification requirements had implications for voting in elections for the federal House of Representatives, once the U.S. Constitution took effect, since Article I, Section 2 stipulates that the voters for the U.S. House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Some, but not all, of the new constitutions included a bill of rights or a declaration of rights. Some of the language in these declarations was largely precatory, with admonitions that state government “ought” not to do certain things, such as impose excessive bail. Other language seems to impose more of a binding commitment on the government. Some of the rhetoric is fairly sweeping, such as the declaration in the Virginia Declaration of Rights that all men are “born free.” The absence of a bill of rights in the federal Constitution was a contentious issue during its ratification. But that issue was resolved with the passage of the first ten amendments. These state declarations became a model for the Bill of Rights, although there were notable differences between the first state declarations and the federal Bill of Rights. The state declarations usually referred to rights to jury trials, the free exercise of religion, and the right to bear arms. The very first state constitutions did not refer to a general freedom of speech, although later constitutions did. Notably, most state constitutions did not include a state equivalent of the federal Establishment Clause.[10] Some constitutions, in fact, authorized state government to support religious institutions[11] and several authorized religious tests for holding certain public offices.[12] The initial constitutions of the original thirteen states did not mention slavery as an institution, although a few rhetorically declared that the British monarch had enslaved the American colonies. Provisions defending, limiting, and abolishing slavery within different states would appear in subsequent constitutional revisions in the coming years.[13]

Some of the early state constitutions were hastily written and did not even provide a provision for amendment. Thus, constitutional changes took place through wholesale re-writes of the documents. Many states drafted entirely new constitutions in the first few years of the republic, and more constitutions were written and ratified as new states were added to the union. Many of those constitutions borrowed from the existing constitutions of other states. For example, about 70% of the 1792 constitution of the new state of Kentucky was taken almost word for word from the Pennsylvania constitution of 1790.[14] Of course, many features of the federal Constitution borrowed somewhat from the state constitutions. Most early state constitutions or amendments were adopted through a legislative process. The constitution of the Commonwealth of Massachusetts was one of the first to require approval by voters. In that instance, the document was voted upon by local towns and townships. Today, most states require a public referendum to approve new constitutions or constitutional amendments.[15]

Acknowledgements: The author would like to thank Dr. James Humphreys for his comments on an earlier draft of this essay. Any errors are the responsibility of the author.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also the chair of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky. 

[1] Adams, Willi Paul.. The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era / Willi Paul Adams; Translated by Rita and Robert Kimber; with a Foreword by Richard B. Morris. Expanded ed. Rowman & Littlefield Publishers; 2001.

[2] Amar, Akhil Reed.   The Words That Made Us: America’s Constitutional Conversation, 1760-1840.  Basic Books,

2021.

[3] Adams, loc cit.

[4] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press.   p.83

[5] Squire, loc cit., p. 87

[6] Lutz, Donald S. “The Theory of Consent in the Early State Constitutions.” Publius 9, no. 2 (1979): 11–42.

[7] Tarr, G. Alan.  “Contesting the Judicial Power in the States.”   Harvard Journal of Law & Public Policy 35, no. 2 (2012): 643-661.

[8] Lutz, loc cit.

[9] Lutz, loc cit.

[10] Lutz, Donald S. “The State Constitutional Pedigree of the U.S. Bill of Rights.” Publius 22, no. 2 (1992): 19–45.

[11] Vincent Phillip Muñoz, “Church and State in the Founding-Era State Constitutions.”   American Political Thought  4, (Winter 2015):1-38.

[12] Wilson, John K. “Religion Under the State Constitutions, 1776-1800.”  Journal of Church and State.  32, no. 4 (1990): 753-773.

[13] Herron, Paul E. “Slavery and Freedom in American State Constitutional Development.” Journal of Policy History 27, no. 2 (2015): 301-336.

[14] Ireland, Robert M.  “The Kentucky Constitution.”  Clinger, James C., and Michael W. Hail.  Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[15] Tarr, 2000

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