Recovering the lost worlds of America's written Constitutions.

• Author: Fritz, Christian G.

1. INTRODUCTION

   The story of American constitutionalism invariably focuses on the formation of the federal Constitution. Supposedly, 1787 marked a culmination in thought following the confusion Americans experienced with written constitutions after the Revolution. In the traditional view, the federal Constitution resolved early uncertainties about the meaning of American constitutionalism and became the definitive model for subsequent constitution-making. (1) Because state constitution-making both before and after 1787 frequently departed from the federal model, scholars typically assume that the state experience is principally instructive for its contrast with the federal Constitution. (2)

   Re-examining how the American Revolution prompted constitutional understandings, and how those understandings grew and developed in the states, both before and after adoption of the federal Constitution, casts serious doubt on the conventional story. The American experience with written constitutions in the states demonstrates a continuity with, as well as a crucial departure from, British law that developed America's distinctive constitutionalism.

   This essay explores the ways in which American constitutionalism in the states was, and continues to be, more than just a precursor or contrast to the federal "ideal," but a rich and dynamic tradition in itself. State constitutionalism springs from our colonial inheritance, but underwent a uniquely American shift from a belief in a right of revolution based in natural law to the notion of a central role of "the people" as the ultimate sovereign. The people's role found expression in written constitutions and took shape in the constitutional transformation from the conventional right of revolution to the right of the people to alter or abolish the constitutional order under which they chose to be governed. The right to "alter or abolish" established a central and ongoing role for constitutional change in American government.

   Indeed, the exercise of the people's right to bring about constitutional change--even if contrary to established constitutional procedures--is one of the hallmarks of American constitutionalism. The rediscovery and reexamination of these lost worlds can only enrich the continuing debate as we define and apply our singular brand of constitutionalism to the new problems which confront us as a people.

2. COLONIAL INHERITANCE AND UNDERSTANDING OF "THE RIGHT OF REVOLUTION" IN 1776

   The traditional model of government that Americans inherited on the eve of their Revolution rested on the concept of government as a theoretical and implied bargain between the King and the people. Reciprocal duties existed on each side. A King protecting his subjects was due allegiance; establishing the basis of a contractual relationship between the monarch and his subjects. Under this relationship, the people retained the ability to cancel the implied contract--through a right of revolution--if the King failed to provide protection. Americans drew upon this right when they accused George III of breaching the implied contract of government, thereby releasing the American people from their duty of allegiance. The Declaration of Independence proclaimed the right to "alter or abolish" government whenever government "becomes destructive" of its rightful ends. (3) Leaders of the American Revolution identified such a right with the well-recognized justifications of both natural law and British constitutional understandings. (4) At the same time, Americans identified the sovereignty of the people as the basis for the legitimacy of their new governments. Creating governments under that theory departed from the model of government as a bargain between the governed and their governors. This different basis of what legitimated governments led to provocative reconsiderations of how one viewed the relationship between the people and the government.

   The natural law right of revolution, as expressed by John Locke, had significant prerequisites. (5) Locke suggested the right arose only in the most dire of circumstances. This Lockean concept provided one approach to the revolt against the King. On the eve of the American Revolution, Alexander Hamilton justified recourse "to the law of nature" when "the first principles of civil society are violated" and "the rights of a whole people are invaded." (6) He described the boundaries of the theory: natural law justified revolution only when the existing order violated the people's collective rights] In the Declaration of Independence, Thomas Jefferson considered the people "endowed by their Creator with certain unalienable Rights," including the right to alter or to abolish governments destructive of the legitimate ends of government. (8) These words are often associated with Locke's justification for the right of revolution. (9) Jefferson cast that document in the desperate language of an oppressed people--the position in which Americans saw themselves in 1776. (10) Jefferson's catalog of colonial grievances demonstrated that Americans had met the pre-conditions for the right of revolution.

   Even if Jefferson's Declaration rested on the Lockean right of revolution, there was another basis that could justify independence. By the 1760s, English law developed conditions and limits for what William Blackstone, in his Commentaries on the Laws of England, called "the law of redress against public oppression." (11) Like the natural law right of revolution, the constitutional law of redress embodied a right of the people collectively to resist. It rested on a contractual relationship between the people and the government to preserve the public's welfare. This original contract, with its reciprocal duties of protection and allegiance, was "a central dogma in English and British constitutional law since time immemorial." (12)

   Alexander Hamilton referred to the right of redress in 1775, noting, "the origin of all civil government ... must be a voluntary compact, between the rulers and the ruled." (13) Such government only possessed powers "necessary for the security of the absolute rights" of the people. (14) A government forfeited political powers, and the people reclaimed these powers, if that government breached the trust reflected in this constitutional contract. (15) This well-recognized British right of redress justified resistance to unconstitutional acts of government, including extra-legal action or collective activity designed to achieve constitutionally legitimate goals. The people could pursue that remedy even in the face of opposition by the existing government. (16) The right to resist was the "ultimate" right on which British liberty rested. (17) "Unconstitutional legislative commands could be ignored and arbitrary legislative commands could be opposed with force." (18) This right was often described in obligatory terms that suggested the duty--not just the right--of the people to resist unconstitutional acts. (19)

   Everyone agreed that breach of the constitutional contract by one party released the other party. (20) More troublesome was "how serious violations had to be to end the contract or permit armed resistance." (21) The inherent vagueness of the unwritten British Constitution complicated the question. (22) The British Constitution was not "a set of directives adopted by the people granting government its prerogatives and limiting its powers." (23) It functioned more as "a way of thinking and arguing about authority, an outline of governmental goals and principles derived from existing institutions, laws, and customs, and drawn by deduction from the patterns by which they functioned." (24) While this amorphousness might have benefited British politics, it produced something of a muddle in understanding the right of resistance when commentators felt it "best" to keep such rights "somewhat imprecise." (25) As a reviewer in the Scots Magazine declared in 1763: "May the right of resistance in the people be for ever supposed! [M]ay it never be defined or explained!" (26)

   As with the right of revolution under natural law, the right to resistance had limitations. It was not an individual right. (27) It belonged to the community as a whole, as one of the parties to the constitutional contract. It could not be invoked as a means of first resort or response to trivial or casual errors of government. (28) In his Commentaries, Blackstone also suggested that use of the right of resistance was "extraordinary," for example, when the King broke the original contract, violated "the fundamental laws," or withdrew from the kingdom. (29) During the Stamp Act crisis of the 1760s, the Massachusetts Provincial Congress invoked the British right of resistance. Resistance was justified when freedom was '"invaded by the hand of oppression, and trampled on by the merciless feet of tyranny."' (30) George III's "tyranny" warranted the withdrawal of the allegiance of Americans to him under the original constitutional contract. The "indictment" in the Declaration of Independence of George III had its roots in the constitutional right of revolution. (31)

   The justification for independence thus comfortably rested on the period's conventional theories. The American revolutionaries based their revolution on the people's collective right to cast off a corrupt monarch. It was both their natural right against tyranny and their British constitutional right of redress from their sovereign's oppression. But the process of creating new governments in America to replace those under the aegis of the British monarch created another problem and produced different understandings. It gave rise to an American theory of legitimate government.

   In rejecting kingship during their Revolution, Americans embraced the concept that the people were the rightful sovereign, rather than a monarch. Americans embraced the concept that the people themselves had become and would remain the rightful...